Escrow. (i) Simultaneously with the 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 2.1(d)(ii) below. (ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of: (A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder. (G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Optimer Pharmaceuticals Inc)
Escrow. (a) On the Closing Date and for a period of one (1) year terminating on the first anniversary thereof, in order to insure (i) Simultaneously the accuracy of the representations and warranties of BBP and each of the Shareholders pursuant to Articles 3 and 5 hereof and (ii) the obligations of the Shareholders pursuant to the Non-Competition Agreement attached hereto, Fundtech shall deposit into escrow with the 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 named in the Escrow Amount in escrow Agreement, certificates evidencing the Fundtech Ordinary Shares representing the Share Consideration (the "Escrow Deposit"), in accordance with Section 2.1(d)(ii2.2(b) below.
(ii) The Escrow Agent shall continue hereof. For purposes hereof, all Fundtech Ordinary Shares returned to hold Fundtech in settlement of any Fundtech Indemnity Claims under the Escrow Amount Agreement shall be valued at the Share Consideration price. At such time as the aggregate amount of Fundtech Indemnity Claims which have been definitively resolved to be payable in escrow in accordance with and subject to this Agreement, from favor of Fundtech shall exceed the date of its receipt of the funds constituting the Deemed Escrow Amount until the soonest of:
(A) in the case of the termination 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 CompanyValue, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Shareholders shall thereafter have no further liability be liable to Fundtech for such claims and, with respect to such deposited fundsclaims pursuant to Section 8.1(i)(x) hereof. The liability of the Shareholders for Fundtech Indemnity Claims in excess of the Deemed Escrow Value may be satisfied, at the election of the Shareholders, through (i) the delivery of Fundtech Ordinary Shares to Fundtech, such shares to be valued at the Share Consideration price, (ii) the payment of cash or (yiii) continue to hold any combination of such portion of Fundtech Ordinary Shares valued at 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 Share Consideration price 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 Companycash.
(iiib) 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, 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 For purposes of this Agreement, the other Transaction Documents, term "Deemed Escrow Value" shall mean the value of the Fundtech Ordinary Shares deposited by Fundtech into the Escrow Amount or any other matter. The Purchasers hereby expressly consents Deposit deemed 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 have the right equal at any time CHF 5,000,000. With respect to resign for any reason and Fundtech Ordinary Shares to be discharged returned to Fundtech by the Shareholders in settlement of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation Fundtech Indemnity Claims pursuant to the Companythis Section 8.6, the Placement Agent and the Purchasers at least ten (10) calendar days prior to the specified effective date any dividends previously paid in respect of such resignation. All obligations of the Escrow Agent hereunder returned Fundtech Ordinary Shares (whether paid in cash, Fundtech Ordinary Shares or other property) shall cease not be returned to Fundtech 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 retained by the Escrow Agent and give written notice thereof to for the Companyaccount of the Shareholders until disbursement in accordance with the terms of the Escrow Agreement and, in any event, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping value of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent dividends shall not be required to determine taken into account for purposes of determining the proper resolution value of such controversy or the proper disposition returned Fundtech Ordinary Shares, as contemplated under paragraph 47g of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 AmountAccounting Principles Board Opinion No. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder16 (Interpretation No. 121).
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Simultaneously with the execution and delivery of this Agreement by a Purchaser, such Purchaser 13.01. The Deposit 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 in an interest bearing account until disbursed as herein provided. Any interest accrued on the Deposit shall be paid to herein as whichever party is entitled to the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow Deposit in accordance with Section 2.1(d)(ii) below.
(ii) the provisions of this Agreement. The interest earned on the Deposit shall at Purchaser’s election either be credited against the Purchase Price or paid to Purchaser at Closing. The Deposit shall be held and disbursed by Escrow Agent shall continue to hold in the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest offollowing manner:
(Aa) in to Seller at the case Closing upon consummation of the termination Closing; or
(b) to Seller upon receipt by Escrow Agent of written demand therefor stating that Purchaser has failed to consummate the transactions contemplated by this Agreement in accordance with the provisions of Section 6.1712.01 herein; provided, in which casehowever, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if the Escrow Agent then holds any portion shall have received written notice of objection from Purchaser in accordance with the provisions of Section 13.02; or
(c) to Purchaser upon receipt of written demand therefor, stating that either (i) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination and that Purchaser is entitled to the Deposit pursuant to the provisions of this Agreement, or (ii) Seller has failed to consummate the transactions contemplated by this Agreement in accordance with the provisions of Section 12.02 herein or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that after the expiration of the Due Diligence Period, Escrow AmountAgent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Seller, then: nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of Section 13.02. If Purchaser elects to terminate this Agreement prior to the expiration of the Due Diligence Period, then Escrow Agent shall pay the entire Deposit to Purchaser as soon as practicable following receipt of the demand therefor from Purchaser, and this Agreement shall thereupon terminate. Notwithstanding anything to the contrary contained herein, no notice from Escrow Agent to Seller shall be required as a condition precedent for or in connection with the release of the entire Deposit to Purchaser by Escrow Agent on or prior to the expiration of the Due Diligence Period and Escrow Agent shall release such funds to Purchaser even if Seller objects thereto but Escrow Agent shall nonetheless promptly notify Seller upon any such release.
13.02. Except as provided in the last two sentences of Section 13.01(c), upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (1b) or (c) of Section 13.01, Escrow Agent shall, within two business days, send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within the greater of five (5) days or three (3) business 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, Escrow Agent shall promptly send a copy thereof to the party who made the written demand.
13.03. Except as provided in the last two sentences of Section 13.01(c), in the event of a termination by any dispute between the Companyparties regarding the Deposit, the Escrow Agent shall return disregard all instructions received and at its option either (i) hold the portion Deposit until the dispute is mutually resolved and Escrow Agent is advised of the Escrow Amount received from each Purchaser which it then holds, to each such said resolution in writing by both Seller and Purchaser, and in the event or Escrow Agent is otherwise instructed by a final non-appealable judgment of a termination by a Purchasercourt of competent jurisdiction, 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 or (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 (xii) deposit that portion of the Escrow Amount to be returned to such Purchaser in Deposit into a court of competent jurisdiction on written notice to such Purchaser, and the (whereupon Escrow Agent shall thereafter have no further be released and relieved of any and all liability with respect and obligations hereunder from and after the date of such deposit).
13.04. Except as provided in the last two sentences of Section 13.01(c), in the event Escrow Agent shall be uncertain as to such deposited fundsits duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or (y) continue to hold such portion instructions which conflict with any of the provisions of this Agreement, Escrow Amount pending receipt 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 by final judgment 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 13.05. 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 upon, and shall be protected in acting or refraining from acting upon 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 Personparty or parties, provided that any modification of this Article 13 shall be signed by Escrow Agent, Purchaser and Seller.
13.06. 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 reasonable 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 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 for any action taken, taken or suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel; provided, that the prevailing party in any dispute hereunder shall be entitled to recover such costs from the other party.
13.07. 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 may resign at will and be discharged from its duties or presented obligations hereunder by giving notice in writing of such resignation specifying a Person if it bearsdate when such resignation shall take effect; provided, as senderhowever, the Person’s e-mail address.
that (Bi) The 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 not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in deposit the case Deposit with a court of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Dutiescompetent jurisdiction. 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, 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 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 After 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Escrow. HNC will withhold from the shares of HNC Common Stock issued to each Shareholder pursuant to Section 1.1.1 and from the amount of cash otherwise payable to each Shareholder pursuant to Section 1.1.1, 10% of such shares and 10% of such cash and will deliver such withheld shares and cash (ithe "ESCROW AMOUNT") Simultaneously with to State Street Bank and Trust Company of California, N.A., or a similar institution chosen by HNC (the execution and delivery of this Agreement by a Purchaser"ESCROW AGENT"), 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 security for the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt indemnification obligations of the funds constituting Shareholders under their Indemnity Agreements and pursuant to the Escrow Amount until provisions of an escrow agreement in substantially the soonest of:
(A) in the case form of the termination 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 CompanyEXHIBIT G hereto among HNC, the Escrow Agent shall return and the portion of Representatives (as defined in Section 1.1.6(b)) (the "ESCROW AGREEMENT").
(a) With respect to each Founder, the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 that will be withheld 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 cash that portion of the Escrow Amount to would otherwise 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 Founder at the Closing will be separate and apart from (which fees shall be set forth and will not reduce the amount of) any cash that is withheld from such Founder and placed in such instructions), and (2) the balance of the aggregate purchase price escrow created pursuant to the CompanyLiquidated Damages Escrow Agreement.
(iiib) The Shareholders, by executing and delivering written consents to the Merger and this Agreement, by executing and delivering Indemnity Agreements and/or by tendering their Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which Certificates as provided in Section 6.2, shall be deemed to (i) adopt and agree to be a third party beneficiary bound by the Escrow Agreement (and the indemnification provisions incorporated by reference therein), (ii) appoint the Founders as representatives of this Section 2.1(d)the Shareholders (the "REPRESENTATIVES") under the Escrow Agreement and as follows:
attorneys-in-fact and agents for and on behalf of each Shareholder as provided in the Escrow Agreement, (iii) authorize the Representatives to take any and all actions and make any and all decisions required or permitted to be taken or made by the Representatives under the Escrow Agreement, including the exercise of the power to (A) The Escrow Agent: authorize delivery to HNC of amounts in escrow in satisfaction of indemnity claims as provided therein, (iB) is not responsible agree to negotiate and enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (C) arbitrate, resolve, settle or compromise any claim for indemnity made as provided therein and (D) take all actions necessary in the judgment of the Representatives for the performance accomplishment of the foregoing. The Representatives will have unlimited authority and power to act on behalf of each Shareholder with respect to the Escrow Agreement, the disposition, settlement or other handling of all claims governed by the CompanyEscrow Agreement, so long as all Shareholders are treated in the Purchasers same manner. The Shareholders will be bound by all actions taken by the Representatives in connection with the Escrow Agreement, and HNC will be entitled to rely on any action or Placement Agent decision of any of two of the Representatives as constituting the action or decision of the Representatives pursuant to their authority to act on behalf of the Shareholders pursuant to the Escrow Agreement and this Agreement. In performing the functions specified in 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 (collectivelyAgreement, the “Escrow Agent Duties”); (iii) shall Representatives will not be obligated liable to take any legal Shareholder for any act 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 omission 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 Representatives made in good faith and in accordance with the opinion or advice exercise of such counselreasonable judgment. Documents Any out-of-pocket costs 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 expenses reasonably incurred by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, Representatives in connection with actions taken pursuant to 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 terms of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECTAgreement will be paid by the Shareholders to the Representatives, 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 out of any action, claim or proceeding brought against the Escrow Agent arising out of or relating amounts that would otherwise be distributed 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, 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 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 Shareholder from the Company and the Placement Agent escrow, pro rata in form and formality satisfactory proportion to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 percentage interests in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court amount in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderescrow.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously with the 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 The Escrow Amount to be paid by Buyer at Closing to a non-the Escrow Agent pursuant to Section 2.02(c) shall be deposited in an interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow AgentAccount”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow established and designated 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 PurchaserAgent, in accordance with written wire transfer instructions received the terms of the Escrow Agreement.
(b) Any payment Seller is obligated to make to any Buyer Indemnitee pursuant to Article VI or this Article VIII, as may be finally determined pursuant to Article VI or this Article VIII, shall be satisfied first by release of funds to the Buyer Indemnitee from the Purchaser; Escrow Account by the Escrow Agent. Seller and (2) if Buyer agree to jointly provide notice to the Escrow Agent has not received written wire transfer instructions from of any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole sums due and absolute discretion, either (x) deposit that portion owing to any Buyer Indemnitee pursuant to Article VI or this Article VIII promptly following final determination of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchasersum so due and owing, and the amount paid by Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of accordingly reduce 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 Amount. On 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 caseExpiration Date, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agent, the fees payable extent not utilized 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 pay Buyer Indemnitees 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 any indemnification claim due 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 owing 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, 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 terms 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 necessarySeller, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event except that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect retain an amount (up 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected total amount then held by the Escrow Agent 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 AmountAccount) equal to the amount of claims for indemnification under Article VI or this Article VIII that have been asserted in writing prior to the Expiration Date but not yet resolved (“Unresolved Claims”). Upon the deposit The Escrow Amount retained for Unresolved Claims shall be released by the Escrow Agent (to the extent not utilized to pay any Buyer Indemnitees for any such claims resolved in favor of such Buyer Indemnitees) upon their resolution in accordance with Article VI or this Article VIII, as applicable, and the terms of the Escrow Agreement.
(c) Under no circumstances shall the deposit of the Escrow Amount with the clerk of such court in accordance with this provision, into the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The Account or the provisions of this Section 2.1(d8.09 serve to create (or imply an agreement to create) any type of limitation on the liabilities and obligations of Seller under this Agreement to the amount of funds held in Escrow Account. Seller’s liabilities under this Agreement shall survive apply irrespective of whether such liabilities may exceed the amount of funds held in Escrow Account as of any termination of this Agreementtime.
Appears in 1 contract
Escrow. (ia) Simultaneously with The Restricted Shareholder hereby authorizes and directs the execution and delivery Secretary 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 Company (the “Escrow AgentSecretary”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow ), or such other person designated by the Escrow Agent Company, to transfer the Restricted Shares which are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, the Restrictions from the date of its receipt of Restricted Shareholder to the funds constituting Company or the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17Partnership, in which caseas applicable, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination forfeiture of such shares pursuant to Section 2.1.
(b) To insure the availability for delivery of the Restricted Shares upon forfeiture pursuant to Section 2.1, the Restricted Shareholder hereby appoints the Secretary, or any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such shares, if any, forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Company, or such other person designated by the Company, the share certificates representing the Restricted Shares or book entries evidencing the Restricted Shares, together with the share assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Shares and share assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Agent shall return the portion Instructions of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Restricted Shareholder attached hereto as Exhibit B, until all of the Closing Restrictions expire or shall have been consummated, in which caseremoved. Upon the lapse of the Restrictions on the Restricted Shares, the Escrow Agent escrow agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) promptly deliver to the Placement Agent, Restricted Shareholder the fees payable certificate or certificates representing such shares in the escrow agent’s possession belonging to such Placement Agent the Restricted Shareholder (which fees shall be set forth in such instructionsor evidence through book entry), and (2) the balance escrow agent shall be discharged of all further obligations hereunder; provided, however, that the aggregate purchase price escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to the Companyother restrictions imposed pursuant to this Agreement.
(iiic) 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 Amountits designee, 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 liable for any act it may do or omit to take any legal or other action hereunder which might do with respect to holding the Restricted Shares 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 escrow and shall be protected in while 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, 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 have the right at any time to resign for any reason and be discharged exercise 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentjudgment.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Restricted Share Agreement (Tanger Factory Outlet Centers, Inc)
Escrow. (i) Simultaneously The wording of Section 1.1.4 of the Agreement titled ‘Escrow” shall be replaced in its entirety with the execution wording of the paragraph hereunder: “Escrow. Upon the signing of the Agreement, an amount of 4,000,000 ILS out of the total Consideration (the “Escrow Amount”) shall be withheld and delivery of this Agreement deposited by a Purchaser, such the 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 ▇opened by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC Trusts Ltd (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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with will be held and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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) distributed 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 Seller by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, only upon and subject to the Person’s e-mail address.
Closing (Band only after (i) 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 deduction of Escrow Agent’s gross negligence or willful misconduct in breach 50% of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS respective amount of Third Party Expenses and Cannation Leakage; and (INCLUDING BUT NOT LIMITED TO LOST PROFITSii) 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 deduction of 50% any and all losspayments known due by Seller and/or Company prior to Closing, liability, cost, damage and expense, as represented in writing by Seller immediately prior to Closing including, without limitationbut not limited to, reasonable counsel fees payments due to (a) Company shareholders, (b) external third parties, and expenses, which (c) all tax authorities (including any additional payments required to be made by 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 Company for completion of the Escrow Agent Duties, except to the extent such action, claim or proceeding is exclusively the result construction of the willful misconductCompany’s five thousand square meters (5,000 square meters) growing facility at Hibat Zion, bad faith or gross negligence of Israel)), and all deductions as aforementioned shall be distributed back to Purchaser, all in accordance with that certain escrow agreement and amendment thereof attached hereto as Schedule 0 and if 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, Closing 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 Documentsnot consummated, 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) will be immediately returned to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 Purchaser by the Escrow Agent and give written notice thereof to the Company, the Placement neither Seller nor Company shall have any claims whatsoever against Purchaser and/or Escrow Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event with respect thereto. It is agreed 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon by the Purchaser will not create any obligation on the Purchaser to close the Agreement and in any event, any such Closing will be relieved subject to fulfillment of all further obligations the conditions set forth in Sections Error! Reference source not found. and released from all liability hereunderError! Reference source not found. below.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.”
Appears in 1 contract
Sources: Share Purchase Agreement
Escrow. If the Additional Payment is payable, a portion of the Shares, equal in number to the quotient by dividing (i) Simultaneously with $363,000 by (ii) the 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 IPO Price (the “"Escrow Agent”Shares") set forth shall be reserved from the Shares otherwise transferable to Seller on Exhibit G attached hereto the Transfer Payment Date and shall be deposited by Buyer into escrow within five days of the Transfer Payment Date. Any Escrow Cash payable by Buyer shall be deposited by Buyer into escrow within five days of the Additional Wire Transfer Date. The Escrow Shares and the Escrow Cash, as the case may be, (the aggregate amounts received being "Escrow Amount") shall be held in escrow as a source of payment for and to secure, without limitation on any legal right or remedy otherwise available to Buyer (other than as set forth in the last sentence of Section 2.5), (A) the liquidated damages amount potentially payable by Seller pursuant to Section 2.5 and (B) the indemnification obligations of Seller pursuant to Section 5 of this Agreement. As of the date that the Additional Payment is payable, the parties shall enter into an agreement regarding the terms under which the Escrow Amount shall be held and paid to Seller in the form attached hereto as Exhibit D (the "Escrow Agreement"), which form shall be amended to include any changes reasonably requested by the Escrow Agent thereunder; provided, that such changes are referred reasonably acceptable to herein as the “Escrow Amount”)parties hereto. The Escrow Agent Agreement will provide that (i) one-half of any Escrow Shares shall hold be released to Seller 90 days following the Effective Date and that all the remaining Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
Shares shall be released 181 days following the Effective Date and (ii) The that any Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Cash shall be set forth in such instructions), and (2) the balance of the aggregate purchase price released 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, 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 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 Seller 181 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 Company and the Placement Agent in form and formality satisfactory to the Escrow AgentEffective Date.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Simultaneously with the execution and delivery of this Agreement by a Purchaser, such Purchaser A. The Deposit 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 upon the “Escrow Amount”). The following terms and conditions:
(i) Escrow Agent shall hold deposit the Escrow Amount Deposit in escrow an interest-bearing account or invest the Deposit in accordance with Section 2.1(d)(ii) below.a money market or monetary fund;
(ii) The Escrow Agent shall continue deliver to hold Seller the Escrow Amount in escrow in accordance Deposit (together with all interest thereon, if any) at and subject to this Agreementupon the Closing; PROVIDED, however, that if the Closing occurs separately for one or more of the Properties from the date of its receipt rest of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 CompanyProperties, the Escrow Agent shall return Deposit will be released only at the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 final 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 If 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 terminated in accordance with the written instructions from terms hereof, or if the Company and the Placement Agent, each Closing does not take place under this Agreement by reason of the responsibilities failure of the either party to comply with such party's obligations hereunder, Escrow Agent shall pay the Deposit to Seller and/or Purchaser, as the case may be, in clause accordance with the provisions of this Agreement.
B. It is agreed that:
(Ai) and (BThe duties of Escrow Agent are only as herein specifically provided, and, except for the provisions of Article 16(C) is hereof, are purely ministerial in nature, and Escrow Agent shall incur no implied duties liability whatsoever except for its own willful misconduct or obligations gross negligence;
(ii) Escrow Agent shall not be liable or responsible for the collection of the proceeds of any kind shall be read into this Agreement against or on checks used to pay the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); Deposit;
(iii) shall not be obligated to take any legal or other action hereunder which might in In the performance of its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to itduties hereunder, in its sole discretion; (iv) may rely on and Escrow Agent shall be protected in acting or refraining from acting entitled to rely upon any written noticedocument, instruction (including, without limitation, wire transfer instructions, whether incorporated herein instrument or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and signature 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 either of the authority other parties or their successors;
(iv) Escrow Agent may assume that any person purporting to give any notice 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 instructions in accordance with the opinion or advice of such counsel. Documents and written materials referred provisions hereof has been duly authorized 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.do so;
(Bv) The Escrow Agent shall not be liable to anyone for bound by any action taken modification, cancellation or omitted to be taken rescission of this Agreement unless in writing and signed by it hereunderit, except Seller and Purchaser;
(vi) Except as otherwise provided in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Article 16(C) hereof, Seller and Purchaser shall jointly and severally reimburse and indemnify Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECTfor, PUNITIVEand hold it harmless against, 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, costcosts or expenses in connection herewith, damage and expense, including, without limitation, including reasonable counsel attorneys' fees and expensesdisbursements, 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 incurred without willful misconduct, bad faith misconduct or gross negligence on the part 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 its acceptance of, or the performance of its duties and obligations under, this Agreement, as well as the reasonable costs and expenses of defending against any claim or liability arising out of or relating to this Agreement;
(vii) Each of Seller and Purchaser hereby releases and forever discharges Escrow AmountAgent from any liability arising out of 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 for any reason upon ten (10) days written notice to Seller and Purchaser. Upon 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 Deposit. Escrow Agent, except (i) in the event of the Closing, (ii) in connection with a Termination Notice by Purchaser in accordance with Article 10 E. or (iii) if the Deposit is required to be delivered to Purchaser pursuant to Article 20 B., 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 Agent is obligated to deliver all or any portion of the Deposit or as to whom such Deposit is to be delivered, Escrow Agent shall not 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 Escrow Amount parties having any interest in such dispute, directing the disposition of the Deposit (together with all interest thereon, if any), or in the clerk absence of such court authorization, Escrow Agent may hold the Deposit (together with all interest thereon, if any), until the final determination of the rights of the parties in an appropriate proceeding. Notwithstanding the foregoing if Purchaser delivers a Termination Notice in accordance with this provisionArticle 10 E. or if Purchaser delivers notice to Escrow Agent that the Deposit is required to be paid to Purchaser pursuant to Article 20 B. of the Agreement, Seller authorizes and directs Escrow Agent to immediately deliver the Deposit to Purchaser without the necessity of any prior notice or consent by Seller. If such written authorization is not given or proceedings for such determination are not initiated within thirty (30) days after the date Escrow Agent shall thereupon 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), with a court of competent jurisdiction pending such determination. Escrow Agent shall be relieved 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 if the Deposit is split between the parties hereto, such costs of Escrow Agent shall be split, PRO RATA, between Seller and Purchaser, in inverse proportion to the amount of the Deposit received by each. Upon making delivery of the Deposit (together with all interest thereon, if any), in the manner provided in this Agreement, Escrow Agent shall have no further obligations and released from all obligation or liability hereunder.
D. Escrow Agent has executed this Agreement solely to confirm that Escrow Agent has received the Deposit (Gif the Deposit is made by check, subject to collection) The and will hold the Deposit, in escrow, pursuant to the provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Sale Purchase Agreement (Five Star Quality Care Inc)
Escrow. (ia) Simultaneously with The Grant of Easement and sale of the execution and delivery of this Agreement Exchange Parcel shall take place through an escrow ("Escrow") administered by a PurchaserGolden State Escrow, such Purchaser shall promptly cause a wire transfer of immediately available funds Inc. (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇the “Escrow Holder”). ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (shall commence upon the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow receipt 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date Holder of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination a copy of this Agreement in executed by CITY and FCD. On or before the Closing Date, CITY shall deposit with the Escrow Holder an amount equal to the sum of the Net Exchange Value, which amount shall be paid to FCD at Close of Escrow. In the event CITY fails to deposit an amount equal to the Net Exchange Value In strict accordance with Section 6.17the foregoing, in which case, if the Escrow Agent then holds any portion time being of the essence, this Agreement shall terminate and any and all funds deposited in Escrow Amount, then: by CITY to complete CITY's obligations under this Agreement shall be refunded to CITY less any Escrow fees (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, extent that CITY failed to timely deposit the fees payable required monies with Escrow Holder due to such Placement Agent (which fees shall be set forth in such instructionsno fault of FCD), and (2) the balance of the aggregate purchase price except as otherwise provided in this Agreement 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 Companycontrary, 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, 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 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 parties shall have no further liability obligation 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 liabilities to the Company, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agentother.
(Fb) 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 If this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty is terminated by FCD or conflicting instructions have been resolved FCD fails to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, the Placement Agent and all of 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 consummate this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 transaction in accordance with this provisionAgreement (through no fault of CITY), FCD shall be solely responsible to Escrow Holder for all customary and reasonable escrow charges payable to Escrow Holder without further or separate instruction to Escrow Holder, and the Escrow Agent parties shall thereupon each be relieved of and discharged from all further obligations and released from all responsibility or liability hereunderunder this Agreement.
(Gc) The provisions If this Agreement is terminated by CITY or CITY fails to consummate this transaction in accordance with this Agreement (through no fault of this Section 2.1(d) FCD), CITY shall survive any termination of be solely responsible to Escrow Holder for all customary and reasonable escrow charges payable to Escrow Holder without further or separate instruction to Escrow Holder, and the parties shall each be relieved and discharged from all further responsibility or liability under this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Escrow. (ia) Simultaneously with The Restricted Shareholder hereby authorizes and directs the execution and delivery Secretary of this Agreement by a Purchaserthe Company, or 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 other person designated by the Escrow Agent Company, to transfer the Restricted Shares which are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, the Restrictions from the date of its receipt of Restricted Shareholder to the funds constituting Company or the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17Employer, in which caseas applicable, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination forfeiture of such shares pursuant to Section 2.1.
(b) To insure the availability for delivery of the Restricted Shares upon forfeiture pursuant to Section 2.1, the Restricted Shareholder hereby appoints the Secretary, or any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such shares, if any, forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Company, or such other person designated by the Company, the share certificates representing the Restricted Shares, together with the share assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Shares and share assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Agent shall return the portion Instructions of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Restricted Shareholder attached hereto as Exhibit B, until all of the Closing Restrictions expire or shall have been consummated, in which caseremoved. Upon the lapse of the Restrictions on the Restricted Shares, the Escrow Agent escrow agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) promptly deliver to the Placement AgentRestricted Shareholder the certificate or certificates representing such shares in the escrow agent’s possession belonging to the Restricted Shareholder, and the fees payable to such Placement Agent (which fees escrow agent shall be set forth in discharged of all further obligations hereunder; provided, however, that the escrow agent shall nevertheless retain such instructions), and (2) the balance of the aggregate purchase price certificate or certificates as escrow agent if so required pursuant to the Companyother restrictions imposed pursuant to this Agreement.
(iiic) 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 Amountits designee, 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 liable for any act it may do or omit to take any legal or other action hereunder which might do with respect to holding the Restricted Shares 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 escrow and shall be protected in while 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, 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 have the right at any time to resign for any reason and be discharged exercise 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentjudgment.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Restricted Share Agreement (Tanger Factory Outlet Centers Inc)
Escrow. (ia) Simultaneously with The Restricted Stockholder hereby authorizes and directs the execution and delivery Secretary of this Agreement by a Purchaserthe Company, or 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 other person designated by the Escrow Agent Company, to transfer the shares of Restricted Stock which are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, the Restrictions from the date of its receipt of Restricted Stockholder to the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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) Company in the event of a termination repurchase of such shares by the Company pursuant to Section 2.1 or forfeiture of such shares pursuant to Section 2.2.
(b) To insure the availability for delivery of the Restricted Stock upon repurchase pursuant to Section 2.1 or forfeiture pursuant to Section 2.2, the Restricted Stockholder hereby appoints the Secretary, or any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such shares, if any, repurchased or forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Company, or such other person designated by the Company, the share certificates representing the Restricted Stock, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Stock and stock assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Agent shall return the portion Instructions of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Restricted Stockholder attached hereto as Exhibit B, until all of the Closing Restrictions expire or 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 removed. As a further condition to the Company’s obligations under this Agreement, the spouse of the Restricted Stockholder, if any, shall execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit C. Upon the lapse of the Restrictions on the Restricted Stock, the escrow agent shall promptly deliver to the Restricted Stockholder the certificate or certificates representing such shares in the escrow agent’s possession belonging to the Restricted Stockholder, and the escrow agent shall be discharged of all further obligations hereunder; provided, however, that the escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to other restrictions imposed pursuant to this Agreement.
(iiic) 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 Amountits designee, 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 liable for any act it may do or omit to take any legal or other action hereunder which might do with respect to holding the Restricted Stock 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 escrow and shall be protected in while 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, 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 have the right at any time to resign for any reason and be discharged exercise 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentjudgment.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Simultaneously The parties, through their respective attorneys, shall establish an escrow with the execution Escrowee through which the transaction contemplated hereby shall be closed (the "Escrow") and into which Purchaser shall cause the Deposit to be deposited. Purchaser, at its sole option, shall direct the Escrowee to invest any cash portion of the Deposit in accounts or securities permitted by Escrowee at the highest available rate of interest, which interest shall be paid to Purchaser (except to the extent otherwise provided in Sections 3.0l(a) and 16.01 hereof). The escrow instructions shall be in the usual form of deed and money escrow agreement customarily used by the Escrowee with such special provisions added thereto as may be required to conform to the provisions of this Agreement and so as to provide for a so-called "New York style" closing requiring the simultaneous delivery of the Deed to Purchaser and disbursement of the Base Purchase Price proceeds to Seller as contemplated by Section 15.05 hereof. Upon creation of the Escrow, anything herein to the contrary notwithstanding, the payment of the Base Purchase Price 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 the Deed and other documents required to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (delivered at the “Initial Closing shall be made through the Escrow. Said 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject be auxiliary to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of and this Agreement shall not be merged into nor in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in manner superseded by said Escrow. In the event of a termination by any inconsistencies between the Company, the Escrow Agent shall return the portion terms and provisions of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, is merely acting as a stakeholder under this Agreement terms and is, therefore, hereby authorized to continue acting as legal counsel to provisions of the Placement Agent including, without limitation, with regard to any dispute arising out of this AgreementEscrow, 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, terms 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) Agreement shall survive any termination of this Agreementgovern and control. The Escrow costs and fees shall be equally divided between Purchaser and Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Escrow. 5.4.1 C&A Receivable
(i) Simultaneously with Upon the execution and delivery Purchaser receiving payment in respect of this Agreement by a Purchaserany C&A Invoice (whether in whole or in part) after the Effective Time, such the 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 (notify the “Escrow Agent”) set forth on Exhibit G attached hereto (Seller and the aggregate amounts received being held in escrow by Seller and the Purchaser shall jointly instruct the Escrow Agent are referred to herein as release to the “Escrow Amount”). The Escrow Agent shall hold Seller from the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) belowAccount 1 a sum equal to 75% of such payment.
(ii) The Escrow Agent shall continue to hold In the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt event of the funds constituting Seller and the Escrow Amount until Purchaser reasonably determining that a C&A Invoice is irrecoverable in whole or in part for any reason, then the soonest of:
(A) in Seller and the case of the termination of this Agreement in accordance with Section 6.17, in which case, if Purchaser shall jointly instruct the Escrow Agent then holds any portion to release to the Seller from the Escrow Account 1 an amount equal to 25% of the Escrow Amount, then: (1) in the event irrecoverable amount of a termination by the Company, the Escrow Agent shall return the portion such C&A Invoice and an amount equal to 75% of the Escrow Amount received from each Purchaser which it then holds, irrecoverable amount of such C&A Invoice to each such Purchaser, and 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 At the Purchasers acknowledge and agree for the benefit end of the Escrow Agent (which Period, the Seller shall be deemed entitled to be a third party beneficiary receive an amount equal to 25% of this Section 2.1(d)the payments received by the Purchaser referred to in Clause 5.4.1(i) as follows:and the Purchaser and the Seller shall jointly instruct the Escrow Agent to release such amount from the Escrow Account 1 to the Seller.
(Aiv) The Escrow Agent: (i) is Any amount due in respect of the C&A Invoices not responsible for the performance received by the Company, Purchaser by 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 end of the Escrow AmountPeriod shall be treated as irrecoverable and, and (B) disbursing the Escrow Amount subject to any payment due to be made in accordance with Clause 5.4.1(iii) having first been made, the written instructions Seller and the Purchaser shall jointly instruct the Escrow Agent to release from the Company and the Placement Agent, each Escrow Account 1 an amount equal to 25% of the responsibilities balance of the Escrow Agent in clause (A) Account 1 to the Seller and (B) is ministerial in nature, and no implied duties or obligations an amount equal to 75% of any kind shall be read into this Agreement against or on the part balance of the Escrow Agent (collectively, Account 1 to 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 Purchaser.
(v) may consult counsel satisfactory The Purchaser undertakes to it, use all reasonable endeavours to collect the C&A Invoices but without having to expend significant resource and the opinion or advice of such counsel expense 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 addressdoing so.
(Bvi) The Escrow Agent shall not be liable Purchaser undertakes 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 continue the performance of the Escrow Agent Duties, except C&A Contracts in the normal course and without prejudice to the extent lawful enforcement of its rights under such actioncontract, claim or proceeding is exclusively the result it will not take any action to cause any of the willful misconductinvoices referred to in Clause 5.4.1 to become irrecoverable or for the postponement, bad faith or gross negligence changes of the Escrow Agentorder of, payment of such invoices.
(Dvii) The Escrow Agent has acted as legal counsel Purchaser undertakes to give promptly to the Placement Agent Seller all information relating to the receipt of any C&A Receivable together with all such other information as the Seller may reasonably require in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder respect of calculating any payments due under this Agreement Clause 5.4.1.
5.4.2 C&A Margin
(i) Following the Effective Time 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 Agreementuntil 31 December 2005, the other Transaction Documents, Purchaser shall within 5 Business Days after the Escrow Amount or any other matter. The Purchasers hereby expressly consents to permit end of each calendar month notify 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 Seller 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 its sales value 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.services delivered to
Appears in 1 contract
Sources: Business Sale Agreement
Escrow. (ia) Simultaneously with the Within six (6) business days following 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date parties shall deliver their respective closing deliveries described below into the custody of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Chase Manhattan Trust Company, the National Association as escrow agent ("Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Seller 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 share equally in the case payment 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 expenses of the Escrow Agent.
(Db) The Escrow Agent has acted as legal counsel Seller's deliveries shall include: (i) all stock certificates representing the Shares, (ii) a duly endorsed but undated stock powers substantially in the form of Exhibits C-1 and C-2 attached hereto (collectively, the "Stock Power") for the transfer of the Shares to the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 Company upon any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount Put Exercise 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 matterCall Exercise, 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(iii) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 an executed copy of the Escrow Agent hereunder Agreement, substantially in the form attached hereto as Exhibit D ("Escrow Agreement") which 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 function in part as irrevocable 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 Company and the Placement Agent in form and formality satisfactory instructions to the Escrow Agent.
(Fc) In The Company's deliveries shall include: (i) cash or cash equivalents in the event that full amount of the Exercise Price, which shall be deposited into a separate account pending release of such funds upon any Put Exercise or Call Exercise, and (ii) an executed copy of the Escrow Agent Agreement which shall be uncertain function in part as to its duties or rights hereunder or shall receive irrevocable escrow 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 (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment .
(d) The Company and the Seller hereby agree that upon the Escrow Agent's receipt of a court of competent jurisdiction, joint written instructions from the CompanyPut Exercise Notice or a Call Exercise Notice, the Placement Agent Seller shall be deemed to have sold, transferred and all of conveyed the Purchasers, or otherwise. In the event that any controversy arises between Shares to the Company and one or more of the Purchasers or any other Company shall be deemed to have purchased the Shares with no additional actions being required by either party with respect to this Agreement or the Escrow Amountconsummate such purchase and sale, the Escrow Agent shall not except as may be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderotherwise provided herein.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
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Escrow. At the Closing, Parent shall deposit (a) (i) Simultaneously the Indemnification Escrow Amount and (ii) the Special Indemnification Escrow Amount, in each case, with the execution and delivery Escrow Agent to provide a source 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 funding to the Indemnified Parties for any Losses for which they are entitled to be paid indemnified pursuant to Article IX, and (b) the Adjustment Escrow Amount with the Escrow Agent to provide a non-interest bearing escrow account source of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (funding for the “adjustment provisions in Section 2.15. The Indemnification Escrow Agent”) set forth on Exhibit G attached hereto (Amount, the aggregate amounts received being Special Indemnification Escrow Amount and the Adjustment Escrow Account shall be held in escrow trust by the Escrow Agent are referred to herein as (for a period of one (1) year in the “case of the Indemnification Escrow Amount”). The Escrow Agent shall hold , the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) Special Indemnity Period (as defined below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Special Indemnification Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 six (26) 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) months 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 Adjustment Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1Amount) pursuant to the Placement Agent, terms of the fees payable escrow agreement in a customary form to such Placement Agent be negotiated in good faith and mutually agreed to by the parties thereto (which fees the “Escrow Agreement”) and 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 released in accordance with the written instructions from the Company terms thereof. The Parties hereby acknowledge and the Placement Agent, agree that 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Indemnification Escrow Amount, the Special Indemnification Escrow Agent Amount and the Adjustment Escrow Amount shall not be required to determine the proper resolution treated as an installment obligation for purposes of such controversy or the proper disposition Section 453 of the Escrow AmountCode, and no party shall have the absolute right, in its sole discretion, to deposit the Escrow Amount take any action or filing position inconsistent with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereundercharacterization.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
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Escrow. (i) Simultaneously with the execution and delivery of this Agreement by a Purchaser, such Purchaser 16.1 The Deposit 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 Escrow Agent, upon the Escrow Agent are referred to herein as the “Escrow Amount”). The following terms and conditions:
(i) Escrow Agent shall hold deposit the Escrow Amount Deposit, in escrow in accordance with Section 2.1(d)(ii) belowan interest-bearing account.
(ii) The Subject to Section 16.1(iii), Escrow Agent shall continue deliver to hold Company the Escrow Amount in escrow Deposit at and upon the Closing, and any interest earned on such Deposit shall be credited to the Investor Capital Contribution; and
(iii) If this Agreement is terminated in accordance with and subject to this Agreementthe terms hereof, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return pay the portion of Deposit to Company or Investor, as the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Purchasercase may be, 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 provisions 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 Companythis Agreement.
(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 follows16.2 It is agreed that:
(Ai) The duties of Escrow Agent: (i) is not responsible Agent are only as herein specifically provided, and, except for the performance by the Companyprovisions of Section 16.3 hereof, 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 are purely 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 incur no liability whatever except for its own willful misconduct 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.gross negligence;
(Bii) The Escrow Agent shall not be liable or responsible for the collection of the proceeds of any checks used to anyone for pay the Deposit;
(iii) In the performance of its duties hereunder, Escrow Agent shall be entitled to rely upon any action taken document, instrument or omitted signature believed by it in good faith to be taken genuine and signed by either of the other parties hereto or their successors;
(iv) Escrow Agent may assume, so long as it hereunderis acting in good faith, except that any person purporting to give any notice of instructions in accordance with the case 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’s gross negligence or willful misconduct , Company and Investor;
(vi) Except as otherwise provided in breach of Section 16.3 hereof, the Company and the Investor shall jointly and severally reimburse and indemnify Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECTfor, PUNITIVEand hold it harmless against, 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, costcosts or expenses in connection herewith, damage and expense, including, without limitation, reasonable counsel including attorneys’ fees and expensesdisbursements, which incurred without willful misconduct or gross negligence on the Escrow Agent may suffer or incur by reason part of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to in connection with its acceptance of, or the performance of its duties and obligations under, this Agreement, as well as the Escrow Agent Duties, except to the extent such action, costs and expenses of defending against any 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, 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 liability 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. ;
(vii) 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 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 Members and Investor hereby releases Escrow Agent and from any act done or omitted to be done by Escrow Agent in good faith in the Purchasers at least performance of its duties hereunder; and
(viii) Escrow Agent may resign upon ten (10) calendar days prior written notice to the specified effective date of such resignationCompany and Investor. All obligations of the If a successor Escrow Agent hereunder shall cease is not appointed by the Company 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 Investor within such ten (10) calendar days following the effective date of resignationday period, 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 may petition a court of competent jurisdiction selected by the to name a successor
16.3 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain is acting as to its duties or rights hereunder or shall receive instructions a stakeholder only with respect to the Deposit. Escrow Amount Agent, except in the event of the Closing and 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 Agent is obligated to deliver all 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of the PurchasersDeposit or as to whom the Deposit is to be delivered, 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine make any delivery, but in such event Escrow Agent may hold the proper resolution same until receipt by Escrow Agent of an authorization in writing, signed by all of the parties having any interest in such controversy or dispute, directing the proper disposition of the Deposit or in the absence of such authorization Escrow AmountAgent 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 shall have the absolute rightthereafter diligently continued, in its sole discretionEscrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Escrow Amount with the clerk of a Deposit in court selected by the Escrow Agent 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 Amountpending such determination. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court in accordance with this provision, the Escrow Agent shall thereupon be relieved reimbursed for all costs and expenses of all such action or proceeding including, without limitation, reasonable attorneys’ fees and disbursements, by the party determined not to be entitled to the Deposit or if the 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 Deposit received by each. Upon making delivery of the Deposit in the manner provided in this Agreement, Escrow Agent shall have no further obligations and released from all obligation or liability hereunder.
16.4 Escrow Agent has executed this Agreement solely to confirm that Escrow Agent has received the Deposit (Gif the Deposit is made by check, subject to collection) The and will hold the Deposit in escrow, pursuant to the provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously with The Deposit, Indemnity Escrow, the execution Additional Indemnity Escrow, and delivery of this Agreement by a Purchaserthe Offset Amount (as defined in Section 11.1(b)), such Purchaser shall promptly cause a wire transfer of immediately available funds if any, (U.S. dollarsthe "Escrowed Funds") 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 hereunder shall be invested in a federally insured interest-bearing money market account or accounts and interest shall accrue for the benefit of and be paid to the party to whom the Escrowed Funds are referred paid pursuant to herein as the “Escrow Amount”)this Agreement. The Deposit shall be paid by Purchaser to Seller or as Seller directs at the Closing and shall not be part of the Escrowed Funds after the Closing.
(b) 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 hold pay the Escrow Amount in escrow Escrowed Funds (together with all interest thereon, if any) to Seller and/or Purchaser, as the case may be, in accordance with Section 2.1(d)(ii) belowthe provisions of this Agreement.
(iic) The parties acknowledge that Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with is acting solely as a stakeholder and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
except (A) in the case of the termination 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: (1i) in the event of the Closing or (ii) in connection with a termination notice by the CompanyPurchaser in accordance with Section 8.1(a), the Escrow Agent shall return not deliver the Escrowed Funds except on seven days' prior written notice to the parties and only if neither party shall object within such seven-day period. If there is any dispute as to whether Escrow Agent is obligated to deliver all or any portion of the Escrow Amount received from each Purchaser which it then holdsEscrowed Funds or as to whom such Escrowed Funds are to be delivered, to each such Purchaser, and in the event of a termination by a Purchaser, the Escrow Agent shall return not make any delivery, but in such event Escrow Agent may hold the portion 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 Escrowed Funds (together with all interest thereon, if any), or in the absence of such authorization, Escrow Amount received from such Agent may hold the Escrowed Funds (together with all interest thereon, if any), until the final determination of the rights of the parties in an appropriate proceeding. Notwithstanding the foregoing, in connection with a termination notice by Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; Section 8.1(a), Seller hereby authorizes and (2) if the directs Escrow Agent has to immediately deliver the Deposit to Purchaser without the necessity of any prior notice or consent by Seller. If such written authorization is not given or proceedings for such determination are not initiated within 30 days after the date Escrow Agent shall have received written wire transfer instructions from any Purchaser before the 30th day after notice of such termination datedispute, then the and thereafter diligently continued, Escrow Agent may, in its sole and absolute discretionbut is not required to, either bring an appropriate action or proceeding for leave to deposit the Escrowed Funds (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in together with all interest thereon, if any), with a court of competent jurisdiction on written notice to pending such Purchaser, and the determination. Escrow Agent shall thereafter have no further liability with respect to be reimbursed for all costs and expenses of such deposited funds, action 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 (proceeding including, without limitation, wire transfer instructionsreasonable attorneys' fees and disbursements, whether incorporated herein by the party determined not to be entitled to the Escrowed Funds, or if the Escrowed Funds are split between the parties hereto, such costs of Escrow Agent shall be split, pro rata, between Seller and Purchaser, in inverse proportion to the amount of the Escrowed Funds received by each. Upon making delivery of the Escrowed Funds (together with all interest thereon, if any), in the manner provided in a separate written instruction)this Agreement, 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 Escrow Agent shall have no responsibility for making inquiry as to, further obligation 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 addressliability hereunder.
(Bd) The Escrow Agent shall not be deemed to be the agent of either of the parties, and that Escrow Agent shall not be liable to anyone either of the parties for any action act or omission on its part unless taken or omitted to be taken by it hereundersuffered in bad faith, except in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the case performance of Escrow Agent’s 's duties hereunder (excluding, however, fees incurred in representing Seller), except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith, in willful disregard of this Agreement or involving gross negligence or willful misconduct in breach on the part 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.
(De) The Escrow Agent has acted as legal counsel acknowledged agreement to these provisions by signing in the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 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 place indicated 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination signature page of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (NHP Retirement Housing Partners I LTD Partnership)
Escrow. (a) On the Closing Date, Acquiror shall deposit the Escrow Amount with the Escrow Agent. The Escrow Amount shall be available to satisfy the indemnification obligations of the Selling Parties to the Acquiror Indemnified Persons as follows:
(i) Simultaneously under Section 9.1(a)(vii) with respect to the execution and delivery of this Agreement by a PurchaserIdentified Tax Issues, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount up to be paid $2,000,000;
(ii) under Section 9.1(a)(viii) with respect to a nonthe Northwest Acquisition Earn-interest bearing escrow account of ▇▇▇▇out, in an amount up to $625,000;
(iii) under Section 9.1(a)(ix) with respect to the Home Health Aid Timesheet Dispute, in an amount up to $225,000; and
(iv) under Section 9.1(a)(x) with respect to the ▇▇▇▇▇▇ ▇Litigation, in an amount up to $250,000.
(b) The Escrow Amount shall be held by Escrow Agent in trust 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 Escrow Agreement.
(c) The amounts identified in Sections 2.8(a)(i) through (iv) as being held in escrow with respect to the Identified Tax Issues, the Northwest Acquisition Earn-out, the Home Health Aid Timesheet Dispute and the ▇▇▇▇▇▇ PC Litigation shall either be disbursed to Acquiror, subject to the provisions of Section 9 and pursuant to valid indemnification claims under Sections 9.1(a)(vii) through (x) or disbursed to Selling Parties' Agent (for further disbursement by the “Escrow Agent”Selling Parties' Agent to the Selling Parties) set forth on Exhibit G attached hereto 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 aggregate amounts received being held Parties agree as follows: (i) for the Identified Tax Issues, the Parties agree that resolution shall occur in escrow 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 are referred to herein treat, the Selling parties as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion owners of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, Fund for income tax purposes and the Escrow Agent shall thereafter have no further liability 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 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 Companyearnings.
(iiie) 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 expenses 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 paid in equal shares by Acquiror and 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 Selling Parties. The Selling Parties' 50% share of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of 's $3,500 acceptance fee, as provided in the Escrow Agreement, shall be included on the Closing Statement as a court of competent jurisdiction, joint written instructions from the Company, the Placement Agent and all payment out of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more cash portion of the Purchasers or any other party with respect Merger Consideration payable to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderSelling Parties.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Almost Family Inc)
Escrow. At TOTAL’s expense, AMYRIS will deposit (ion the timing specified below) Simultaneously with the 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 mutually agreed Third Party escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC agent (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in ), pursuant to one or more escrow agreements entered by the such Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, AMYRIS and TOTAL 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 following (collectively, the “Escrow Agent DutiesEscrowed Materials” and each escrowed Strain, a “Banked Strain”):
(a) Continuing until the earliest of (1) the twentieth anniversary of the Effective Date, (2) the date six (6) months after the date on which TOTAL has the right to practice the license set forth in Section 2.A(i)(b), and (3) the achievement of a Successful Commercial Transfer, AMYRIS shall escrow the following materials: the Intermediate Strain(s) and the then current process for the Manufacture of Licensed Products using the Intermediate Strain(s) including the documentation specified on Exhibit B (“Initial Package”); (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 . The Initial Package shall be protected in acting or refraining from acting upon any written noticeescrowed no later than within ninety (90) days of the Effective Date, instruction and at least semi-annually thereafter until the occurrence of the earliest of clauses (including1) - (3) of this Section 2.D(iii)(a), AMYRIS shall update the Initial Package to reflect the then current process for the Manufacture of Licensed Products using the then current Intermediate Strain(s).
(b) No later than thirty (30) days after the Parties’ designation of each Program Strain, if any, AMYRIS shall escrow the following materials: such Program Strain and the then current process for the Manufacture of Licensed Products using such Program Strain, 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.documentation specified on Exhibit A.
(Bc) The Escrow Agent shall not be liable TOTAL may, from time to anyone for any action taken or omitted to be taken by it hereundertime, 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 obtain access to the performance of Escrowed Materials (at 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 location of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel for audit purposes, i.e. to verify that the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 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 Escrowed Materials have been appointed properly submitted and have accepted stored (provided that if AMYRIS requests, TOTAL’s representative may be accompanied by AMYRIS’ representative during 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 agentaudit), and upon such deliveryrequest of TOTAL and at TOTAL’s expense, AMYRIS shall cause 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 Escrowed Materials to a court of competent jurisdiction selected be sent to an independent laboratory reasonably agreed to by the Escrow Agent Parties to allow testing and give written notice thereof to evidence that the Company, the Placement Agent Banked Strains remain viable and the Purchasers, or (B) continue to hold the Escrow Amount produce farnesene at expected yields, in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent which case such laboratory 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 (except considered a Strain Recipient for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination purposes of this Agreement.
(d) TOTAL will have the right to a release of the Escrowed Materials from the Escrow Agent at such time as TOTAL is entitled to exercise the license granted in Section 2.A(i)(b).
(e) AMYRIS’ obligations to escrow under this Agreement, including the Intermediate Strain(s), the Initial Package, and, if applicable, the Program Strain(s) and the Commercial Technology Transfer Package, shall terminate six (6) months after the date on which TOTAL has the right to practice the license set forth in Section 2.A(i)(b). Thereafter, TOTAL shall be responsible for maintaining the Strains and information that were the subject of the Successful Commercial Transfer. Notwithstanding anything to the contrary in this Agreement, under no circumstances shall TOTAL receive more than an aggregate of fourteen (14) Banked Strains.
(f) Any dispute between the Parties regarding the deposit of any Escrowed Materials or the access to any Escrowed Materials shall be resolved as provided in Section 8.A, B and D.
Appears in 1 contract
Sources: License Agreement (Amyris, Inc.)
Escrow. (i) Simultaneously Notwithstanding anything to the contrary contained in this Agreement, at the Closing, Parent shall deposit with the execution and delivery of this Agreement by a PurchaserJPMorgan Chase Bank, 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 N.A. (the “Escrow Agent”): (i) set forth on into an interest-bearing escrow account, an amount in cash equal to the Indemnity Escrow Amount (as may be supplemented pursuant to Exhibit G attached hereto E and subject to the terms of Section 10) (the aggregate amounts received being held “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 by account, an amount in cash equal to the Securityholders’ Agent Fund, pursuant to Section 11.1(g) (together with the Indemnity Escrow Agent are referred to herein as Fund and the Working Capital Escrow Fund, the “Escrow AmountFund”). The Escrow Agent Fund shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if be held by the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination and disbursed by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 solely 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 purposes and in accordance with the opinion or advice terms 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 Documentsprovisions of the escrow agreement to be entered into among Parent, is merely acting as a stakeholder under the Securityholders’ Agent and the Escrow Agent on the Closing Date, substantially in the form of Exhibit C to this Agreement (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 isapproval of the Merger by the Effective Time Holders pursuant to written consents evidencing the Required Merger Shareholder Vote, 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 AgreementAcknowledgment and Release Agreements, the other Transaction DocumentsWarrant 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 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company arrangements and one or more provisions of the Purchasers or any other party with respect to this Agreement or the Escrow Amountrelating thereto, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 including the deposit by the Escrow Agent of the Escrow Amount with into escrow and the clerk of such court indemnification obligations set forth in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations Sections 6 and released from all liability hereunder10 hereof.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Simultaneously with the 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, 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 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) 12.1 In the event that the Escrow Agent Purchaser has given notice to any Noteholder (as defined in the Set-Off Loan Note) pursuant to the provisions of Condition 7.1 of the Set-Off Loan Note that it wishes to exercise its right of set-off thereunder and to the extent that any claim or claims subject to such right of set-off ("Relevant Claim") have not been settled or withdrawn by 31 December 2000 (being the "Maturity Date" thereunder), the Purchaser shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder whichentitled, 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in at its sole discretion, to deposit pay any amount which it is entitled to deduct from the Principal and/or the Interest (each as defined therein) ("the Escrow Amount with Sum") into an interest bearing deposit account held in the clerk joint names of a court selected by the Purchaser's Solicitors and Vendors' Solicitors ("the Escrow Agent and file a suit in interpleader in that court and obtain an order Account").
12.2 As soon as possible following the agreement or determination or final adjudication of the Relevant Claim there shall be released 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 Account:-
12.2.1 to the deposit by Purchaser (or as it shall direct), a sum equal to the Escrow Agent amount for which the Relevant Claim shall have been agreed or determined or for which judgment in respect of the Relevant Claim shall have been obtained, together with a proportion of the total interest earned on the monies standing to the credit of the Escrow Amount Account from Completion to the date of payment out (being that proportion which the sum released to the Purchaser from the Escrow Account pursuant to this sub-clause bears to the Escrow Sum); and
12.2.2 to the Vendors' Solicitors the balance of the monies standing to the credit of the Escrow Account.
12.3 In the event that the Purchaser has not exercised its rights under 12.1 above and any Relevant Claim has not been settled or withdrawn by 30 November 2001, the Purchaser shall be obliged to place the relevant Escrow Sum into the Escrow Account, such Escrow Sum to be dealt with the clerk of such court in accordance with this provisionthe provisions of Clause 12.2 above and in the event that the Purchaser shall fail to do so, then, for the purposes of Condition 7 only, the Escrow Agent Relevant Claim shall thereupon be relieved of all further obligations and released from all liability hereunderdeemed to have been withdrawn.
(G) 12.4 The Parties shall give such instructions to their respective solicitors as is necessary to give effect to the provisions of this Section 2.1(d) shall survive any termination of this AgreementClause 12.
Appears in 1 contract
Escrow. Notwithstanding anything herein to the contrary, but recognizing the duty to mitigate damages under Section 9.04(j) above,
(ia) Simultaneously with respect to Company Special Representations and the execution and delivery Seller Special Representations, the Purchaser Indemnitees shall first exhaust the Indemnification Escrow Funds or a breaching Seller Party’s portion of this Agreement by a Purchaserthe Indemnification Escrow Funds (based on such Seller Party’s Allocated Proportionate Share thereof), as applicable, before proceeding to make an indemnification claim against the Seller Parties, severally, or such Purchaser shall promptly cause a wire transfer of immediately available funds breaching Seller Party, as applicable,
(U.S. dollarsb) in an amount representing such Purchaser’s Subscription Amount except with respect to be paid to a non-interest bearing escrow account of ▇▇▇▇Company Special Representations, Seller Special Representations, the Environmental Indemnity Claims, the ▇▇▇▇▇▇ ▇Claim and [***] and except as set forth in the last sentence of Section 9.07 hereof, the Purchaser Indemnitees shall have * Confidential Treatment Requested -45- recourse only against the undisbursed Indemnification Escrow Funds with respect to any Damages, in accordance with the terms of the Escrow Agreement,
(c) with respect to [***], the ▇▇▇▇▇▇ 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 Claim or as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 last sentence 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 Company9.07 hereof, 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 itPurchaser Indemnitees shall, in its their sole discretion; (iv) may rely on and shall , be protected in acting entitled to make a claim against the Indemnification Escrow Funds or refraining from acting upon any written noticeagainst the Seller Parties, 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 toseverally, 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 bearsbreaching Seller Party, 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, 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 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 timeapplicable,
(Id) 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 Company and the Placement Agent in form and formality satisfactory to 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 AgreementEnvironmental Indemnity Claims, the Purchaser Indemnitee shall first exhaust the Environmental Holdback Funds before proceeding to make an indemnification claim against the Indemnification Escrow Agent shall have Funds, then exhaust the absolute right Indemnification Escrow Funds, before proceeding to suspend all further performance of its duties under this Agreement (except for make an indemnification claim against the safekeeping of 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 jurisdictionSeller Parties, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderseverally.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) 3A.1. Simultaneously with the execution and delivery of this Agreement by an Initial Investor, in the case of the First Closing, or a PurchaserRemaining Investor, in the case of a Subsequent Closing, such Purchaser Initial Investor or Remaining Investor, as applicable, shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount Investor's portion of the Initial Purchase Price or the Remaining Purchase Price, as the case may be, set forth on such Investor's signature page, to be paid to a the non-interest bearing escrow account of Lowenstein Sandler PC, the lead ▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇ PC el (the “Escrow Agent”) "Lead Investor Counsel"), set forth on Exhibit G attached Schedule I affixed hereto (the aggregate amounts received being held in escrow by the Escrow Agent Lead Investor Counsel with respect to a particular Closing are referred to herein as the “"Escrow Amount”"). The Escrow Agent Lead Investor Counsel shall hold the Escrow Amount with respect to a particular Closing in escrow in accordance with Section 2.1(d)(iiuntil Lead Investor Counsel receives written instructions (the "Escrow Release Instructions") below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of Company and the funds constituting the Escrow Amount until the soonest of:
(A) Initial Investors, in the case of the termination First Closing, or the Remaining Investors, in the case of this Agreement any Subsequent Closing, authorizing the release of the Escrow Amount in accordance with Section 6.17the written instructions delivered to Lead Investor Counsel. If Lead Investor Counsel has not received the Escrow Release Instructions, then, on the sooner of November 26, 2004, in which casethe case of the First Closing, if or December 15, 2004, in the Escrow Agent then holds case of any Subsequent Closing, Lead Investor Counsel shall return to each Investor the portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 fundsparticular Closing, or (y) continue such Investor delivered to hold such portion the Lead Investor Counsel, but only to the extent 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 funds actually received by 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) Lead Investor Counsel pursuant 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 Companythis Agreement.
(iii) 3A.2. The Company and the Purchasers Investors acknowledge and agree for the benefit of the Escrow Agent Lead Investor Counsel (which shall be deemed to be a third party beneficiary of this Section 2.1(d)3A) as follows:
(Aa) The Escrow Agent: Lead Investor Counsel (i) is not responsible for the performance by the Company, Company or the Purchasers or Placement Agent Investors 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, Release Instructions and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Placement AgentEscrow Release Instructions, each of the responsibilities of the Escrow Agent Lead Investor Counsel 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 Lead Investor Counsel (collectively, the “Escrow Agent "Lead Investor Counsel 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 written 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)(A3A.2(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 Lead Investor Counsel as having been signed or presented by a Person if it bears, as sender, the Person’s 's e-mail address.
(Bb) The Escrow Agent Lead Investor Counsel 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 Lead Investor Counsel's gross negligence or willful misconduct in breach of the Escrow Agent Lead Investor Counsel Duties. IN NO EVENT SHALL THE ESCROW AGENT LEAD INVESTOR COUNSEL BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT LEAD INVESTOR COUNSEL HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(Cc) The Company and the Investors hereby indemnifies indemnify and holds hold harmless the Escrow Agent Lead Investor Counsel from and against against, any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent Lead Investor Counsel may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent Lead Investor Counsel arising out of or relating to the performance of the Escrow Agent Lead Investor Counsel Duties, except to the extent unless such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow AgentLead Investor Counsel.
(Dd) The Escrow Agent Lead Investor Counsel has acted as legal counsel to certain of the Placement Agent Investors in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent such Investors 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 Each of the Company and the Investors hereby expressly consents to permit the Escrow Agent Lead Investor Counsel to represent the Placement Agent such Investors 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 Company and the Investors has consulted with its own counsel specifically about this Section 2.1(d) 3A to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Airtrax Inc)
Escrow. (i) Simultaneously with the 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.176.18, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1A) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 such Purchaser; and (2B) 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: (1A) to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions)Agent, and (2B) 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 and the Purchasers hereby indemnifies indemnify and holds hold 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 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 Company in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent Company 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 Company 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously with On the execution and delivery Closing Date, Parent shall pay a portion 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 the Adjusted Base Amount equal to the Escrow Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC Fargo Bank, National Association, as escrow agent of the parties hereto (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being ), to be held in escrow escrow. Such escrowed funds shall be held and invested by the Escrow Agent in accordance with the terms of this Agreement and an Escrow Agreement substantially in the form attached hereto as Exhibit B with such changes as requested by the Escrow Agent that are referred reasonably acceptable to herein as the Purchaser and the Seller Representative (the “Escrow AmountAgreement”) and, together with any earnings thereon (the “Escrow Fund”). The Escrow Agent , shall hold be released in accordance with the terms of this Agreement and the Escrow Amount in escrow Agreement.
(b) Any amount to be released from the Escrow Fund to the Sellers in accordance with Section 2.1(d)(ii2.4(a) below.
(ii) The Escrow Agent shall continue to hold and the Escrow Amount in escrow in accordance with and subject Agreement shall be reduced by (i) the Employee Portion of such release, which will be paid to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement Bonus Employees in accordance with Section 6.172.9, in which case, if plus (ii) the Escrow Agent then holds aggregate amount of any portion applicable hospital insurance (Medicare) tax imposed pursuant to Section 3111(b) of the Escrow Amount, then: (1) in the event of a termination Code payable by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Parent or 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 Affiliates with respect to such deposited fundsthereto, 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.
plus (iii) The Company the aggregate amount of any applicable old-age, survivors, and the Purchasers acknowledge and agree for the benefit disability insurance (Social Security) tax imposed pursuant to Section 3111(a) 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 Code payable by Parent or its Affiliates with respect thereto for any Bonus Employee not responsible for the performance employed 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 Parent 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 its Subsidiaries 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 date 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, 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 matterpayment. The Purchasers hereby expressly consents to permit parties shall instruct the Escrow Agent to represent release to Parent an amount equal to the Placement Agent in connection sum of the amounts specified clauses (i) through (iii) concurrently with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, release from 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) Fund to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such adviceSellers.
(E) The Escrow Agent shall 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. Escrow Agent shall hold the Fund and documents in escrow, dispose of the Fund, pro rate revenues and expenses and deliver documents only in accordance with the following provisions:
(ia) Simultaneously with the full execution and delivery of this Agreement by a PurchaserAgreement, such Purchaser shall promptly cause a wire transfer of immediately available funds and Seller opened an escrow (U.S. dollarsthe "Escrow") in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of with ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.A. (the "Escrow Agent"), whose address is ▇▇▇ ▇. ▇▇▇▇▇▇▇ PC (Boulevard, Suite 1000, Tampa, FL 33602, by delivering to Escrow Agent the “Initial Deposit. Within two days after the full execution of this Agreement, the parties shall deliver to Escrow Agent a fully executed copy of this Agreement. The purchase and sale of the Property shall be completed through the Escrow. This Agreement, together with the standard form provisions of Escrow Agent”) set forth on Exhibit G , which are attached hereto as Schedule "7", shall constitute joint escrow instructions to Escrow Agent in connection with the Escrow. In the event of any inconsistency between the provisions of this Agreement (other than Schedule "7") and the aggregate amounts received being held in escrow provisions of Schedule "7", the former shall prevail. Purchaser and Seller hereby agree to execute such additional instructions not inconsistent with this Agreement as may be reasonably required by Escrow Agent.
(b) At the Closing, the Escrow Agent are referred to herein as shall do the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow following:
(i) Prorate all matters in accordance with Section 2.1(d)(ii3, above, based on the latest available information and obtain Seller's and Purchaser's approval of those prorations;
(ii) belowCause the Deed and the Prudential Lease Memorandum to be recorded;
(iii) Disburse all funds deposited with Escrow Agent by Purchaser in payment of the Purchase Price for the Property as follows:
A. Deduct the amount of items chargeable to the account of Seller pursuant to this Agreement;
B. Disburse to Seller's Broker its commission relating to the sale of the Premises in accordance with a separate agreement, a copy of which was delivered to Escrow Agent and the initial commission relating to the Prudential Lease (but not any commissions owed on the Prudential Lease after the commencement date of the Prudential Lease, which commissions shall be the responsibility of Purchaser);
C. The remaining balance of the funds deposited by Purchaser in the Escrow in payment of the Purchase Price shall be disbursed to Seller pursuant to its demand;
(iv) Deliver to Seller the following documents: Original counterparts of the Bill of Sale, the A&A Agreements, the Prudential Lease, and any other documents executed by Purchaser pursuant to Section 12 hereof.
(v) Deliver or cause to be delivered to Purchaser the marked up Title Commitment referenced in Section 11 above and the following documents: A photostat copy of the Deed and original counterparts of the Bill of Sale, the A&A Agreements, the Prudential Lease, and any other documents executed by Seller pursuant to Section 11 hereof.
(c) The costs incidental to the Closing shall be paid as follows:
(i) Seller shall pay: (A) Fifty percent (50%) of the Documentary Stamps due on the Deed; (B) Fifty percent (50%) of the premium (at promulgated rates) and Fifty percent (50%) of all search fees for the Title Commitment and the owner's title policy issued pursuant thereto; (C) Fifty percent (50%) of the cost of the Survey; (D) the cost of recording the Deed; and (E) Fifty percent (50%) of the sales tax due, if any, on the transfer of the Personal Property.
(ii) The Purchaser shall pay: (A) Fifty percent (50%) of the premium (at promulgated rates) and Fifty percent (50%) of all search fees for the Title Commitment and the owner's title policy issued pursuant thereto; (B) Fifty percent (50%) of the cost of the Survey; (C) Fifty percent (50%) of the Documentary Stamps due on the Deed; and (D) Fifty percent (50%) of the sales tax due, if any, on the transfer of the Personal Property.
(iii) Purchaser and Seller shall each pay their own legal fees and other incidental expenses incurred in connection with the transaction contemplated by this Agreement.
(iv) Purchaser shall pay all documentary stamps, intangible taxes, and recording fees on any note, mortgage or document evidencing a security interest executed in connection with placement of debt on the Premises and any lender's title insurance policy ($250.00) and any title insurance endorsements required by lender (at promulgated rates).
(v) Any other costs or expenses in connection with the transaction contemplated by this Agreement shall be apportioned in the manner customary in similar real estate transactions in ▇▇▇▇▇ County, Florida.
(d) Escrow Agent shall continue deliver the Fund to hold Seller or Purchaser, as the Escrow Amount in escrow in accordance with and subject to this Agreementcase may be, from the date of its receipt of the funds constituting the Escrow Amount until the soonest ofas follows:
(i) to Seller, upon completion of the Closing; or
(ii) to Seller, after receipt of Seller's demand in which Seller certifies either that (A) in Purchaser failed to pay the case of Purchase Price at the termination of Closing, (B) Purchaser has otherwise defaulted under this Agreement and did not cure such default after notice as provided in Section 16(b) hereof, or (C) this Agreement has been otherwise terminated or cancelled, and Seller is thereby entitled to receive the Fund; but Escrow Agent shall not honor Seller's demand until more than ten (10) days after Escrow Agent has given a copy of Seller's demand to Purchaser in accordance with Section 6.1720(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or
(iii) to Purchaser, after receipt of Purchaser's demand in which casePurchaser certifies either that (A) Seller is unable to deliver title to the Premises as required hereby, if (B) Seller has otherwise defaulted under this Agreement and did not cure such default after notice as provided in Section 17(c) hereof, or (C) this Agreement has been otherwise terminated or cancelled, and Purchaser is thereby entitled to receive the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Fund; but Escrow Agent shall return the portion not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Seller in accordance with Section 20(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon delivery of the Escrow Amount received from each Purchaser which it then holdsFund, ▇▇▇▇▇▇ Agent shall be relieved of all liability hereunder and with respect to each such Purchaser, and in the event of a termination by a Purchaser, the Fund. Escrow Agent shall return deliver the portion Fund, at the election of the party entitled to receive the same, by (i) a good, unendorsed trust account check of Escrow Amount received from Agent payable to the order of such Purchaser which it then holdsparty, (ii) an unendorsed official bank or cashier's check payable to the order of such Purchaserparty, in accordance with written or (iii) a bank wire transfer instructions received of immediately available funds to an account designated by such party.
(i) Upon receipt of a written demand from Seller or Purchaser under Section 20(d)(ii) or (iii), Escrow Agent shall send a copy of such demand to the Purchaserother party. Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Fund to the party making such demand by giving a notice of objection (a "Notice of Objection") to Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the party who made the demand; 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 maythereafter, in its sole and absolute discretion, Escrow Agent may elect either (xA) deposit that portion to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Seller directing the disbursement of the Escrow Amount to be returned to such Purchaser Fund, in a court of competent jurisdiction on written notice to such Purchaser, and the which event Escrow Agent shall thereafter have no further liability disburse the Fund in accordance 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 jurisdictionagreement; OR
and/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 and all actions as Escrow Agent deems necessary 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 itdesirable, in its sole and absolute discretion; (iv) may rely on , to discharge 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, is merely acting as a stakeholder terminate its duties 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 depositing the Fund into 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 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 and bringing any action of interpleader or any other proceeding; and/or (C) in the Escrow Agent event of any litigation between Seller and give written notice thereof Purchaser, to deposit the Company, Fund with the Placement Agent and clerk of the Purchasers, or (B) continue to hold the Escrow Amount court in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agentwhich such litigation is pending.
(Fii) In the event that the If Escrow Agent shall be is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Section 20(d)(ii) or (iii), or Notice of Objection under Section 20(b)(i)), notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 20(e)(i)(A),(B) or (C) and may decline to take any other action whatsoever. In the event the Fund is deposited in a court by Escrow Agent pursuant to Section 20(e)(i)(B) or (C), Escrow Agent shall receive instructions be entitled to rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to disposition of the Fund, Purchaser and Seller shall pay the attorney's fees and costs incurred by Escrow Amount Agent (which said parties shall share equally, but for which said parties shall be jointly and severally liable) for any litigation in which Escrow Agent is named as, or any portion thereunder whichbecomes, a party.
(f) Notwithstanding anything to the contrary in its sole discretionthis Agreement, are in conflict either with other instructions received by it or with any provision within one (1) business day after the date of this Agreement, the Escrow Agent shall have place the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of Funds in an Approved Investment. The interest, if any, which accrues on 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, joint written instructions from the Company, the Placement Agent and all Approved Investment shall be deemed part of the Purchasers, or otherwise. In the event that any controversy arises between the Company Fund; and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution dispose of such controversy or the proper disposition of the Escrow Amount, interest as and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Fund pursuant to this Agreement. Escrow Agent 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 may not commingle the Fund with the any other funds held by Escrow AmountAgent. Upon the deposit by the Escrow Agent of may convert the Escrow Amount with Fund from the clerk of such court in accordance with this provisionApproved Investment into cash or a non-interest-bearing demand account at an Approved Institution as follows:
(i) at any time within three (3) days prior to the Closing Date; or
(ii) if the Closing Date is accelerated or extended, at any time within three (3) days prior to the accelerated or extended Closing Date (PROVIDED, HOWEVER, that Seller and Purchaser shall give Escrow Agent shall thereupon be relieved timely notice of all further obligations any such acceleration or extension and released from all liability hereunderthat Escrow Agent may hold the Fund in cash or a non-interest-bearing deposit account if Seller and Purchaser do not give Escrow Agent timely notice of any such adjournment).
(Gg) As used herein, the term "Approved Investment" means (i) any interest-bearing demand account or money market fund in First Union National Bank of Florida, N. A. branch located in the City of Tampa or in any other institution otherwise approved by both Seller and Purchaser (collectively, an "Approved Institution"), or (ii) any other investment approved by both Seller and Purchaser. The provisions rate of this Section 2.1(d) interest or yield need not be the maximum available and deposits, withdrawals, purchases, reinvestment of any matured investment and sales shall survive any termination be made in the sole discretion of this AgreementEscrow Agent, which shall have no liability whatsoever therefor. Discounts earned shall be deemed interest for the purpose hereof.
Appears in 1 contract
Escrow. (ia) Simultaneously with Purchaser hereby authorizes and directs the execution and delivery Secretary of this Agreement by a Purchaserthe Company, or 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 other person designated by the Escrow Agent are referred Company, to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow transfer any Shares forfeited in accordance with Section 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, 2 above from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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.
(iiib) The Company and To insure the Purchasers acknowledge and agree availability for the benefit delivery of the Escrow Agent (which shall be deemed Shares upon Purchaser’s forfeiture thereof, Purchaser hereby appoints the Secretary of the Company, or any other person designated by the Company as escrow agent, as its attorney-in-fact to be a third party beneficiary sell, assign and transfer unto the Company, such Shares, if any, forfeited by Purchaser in accordance with Section 2 above and shall, upon execution of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible for Agreement, deliver and deposit with the performance Secretary of the Company, or such other person designated by the Company, the Purchasers or Placement Agent of this Agreement or share certificates representing any and all Unvested Shares, together with the stock assignment duly endorsed in blank. The share certificates representing the Unvested Shares and the stock assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Instructions of the Transaction Documents or for determining or compelling compliance therewith; Company and Purchaser attached as Exhibit A hereto, until the first to occur of (i) Purchaser’s forfeiture of such Shares in accordance with Section 2 above, (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 Amountdate on which such Shares cease to be Unvested Shares, 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) this Agreement ceasing to be in effect. Promptly following the date on which any Shares cease to be Unvested Shares, the escrow agent shall deliver to Purchaser the certificate or certificates representing such Shares in the escrow agent’s possession belonging to Purchaser, and the escrow agent shall be discharged of all further obligations hereunder; provided, that the escrow agent shall nevertheless retain such certificate or certificates if so required pursuant to other restrictions imposed pursuant to this Agreement.
(c) The Company, or its designee, shall not be obligated liable for any act it may do or omit to take any legal or other action hereunder which might do with respect to holding the Shares 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 escrow and shall be protected in while 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, 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 have the right at any time to resign for any reason and be discharged exercise 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentjudgment.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Restricted Stock Purchase Agreement (Demand Media Inc.)
Escrow. At Company’s expense, AMYRIS will deposit (ion the timing specified below) Simultaneously with the 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 mutually agreed Third Party escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC agent (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in ), pursuant to one or more escrow agreements entered by the such Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, AMYRIS and Company 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 following (collectively, the “Escrow Agent DutiesEscrowed Materials” and each escrowed Strain, a “Banked Strain”):
(a) Continuing until the earliest of (1) the twentieth anniversary of the Effective Date, (2) the date six (6) months after the date on which Company has the right to practice the license set forth in Section 2.A(i)(b), and (3) the achievement of a Successful Commercial Transfer, AMYRIS shall escrow the following materials: the Intermediate Strain(s) and the then current process for the Manufacture of JV Jet Products using the Intermediate Strain(s) including the documentation specified on Exhibit B (“Initial Package”); (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 . The Initial Package shall be protected in acting or refraining from acting upon any written noticeescrowed no later than within ninety (90) days of the Effective Date, instruction and at least semi-annually thereafter until the occurrence of the earliest of clauses (including1) - (3) of this Section 2.D(iii)(a), AMYRIS shall update the Initial Package to reflect the then current process for the Manufacture of JV Jet Products using the then current Intermediate Strain(s).
(b) No later than thirty (30) days after the Parties’ designation of each Program Strain, if any, AMYRIS shall escrow the following materials: such Program Strain and the then current process for the Manufacture of JV Jet Products using such Program Strain, 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.documentation specified on Exhibit A.
(Bc) The Escrow Agent shall not be liable Company may, from time to anyone for any action taken or omitted to be taken by it hereundertime, 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 obtain access to the performance of Escrowed Materials (at 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 location of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel for audit purposes, i.e. to verify that the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 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 Escrowed Materials have been appointed properly submitted and have accepted stored (provided that if AMYRIS requests, Company’s representative may be accompanied by AMYRIS’ representative during 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 agentaudit), and upon such deliveryrequest of Company and at the Company’s expense, AMYRIS shall cause 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 Escrowed Materials to a court of competent jurisdiction selected be sent to an independent laboratory reasonably agreed to by the Escrow Agent Parties to allow testing and give written notice thereof to evidence that the Company, the Placement Agent Banked Strains remain viable and the Purchasers, or (B) continue to hold the Escrow Amount produce farnesene at expected yields, in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent which case such laboratory 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 (except considered a Strain Recipient for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination purposes of this Agreement.
(d) Company will have the right to a release of the Escrowed Materials from the Escrow Agent at such time as Company is entitled to exercise the license granted in Section 2.A(i)(b).
(e) AMYRIS’ obligations to escrow under this Agreement, including the Intermediate Strain(s), the Initial Package, and, if applicable, the Program Strain(s) and the Commercial Technology Transfer Package, shall terminate six (6) months after the date on which Company has the right to practice the license set forth in Section 2.A(i)(b). Thereafter, the Company shall be responsible for maintaining the Strains and information that were the subject of the Successful Commercial Transfer. Notwithstanding anything to the contrary in this Agreement, under no circumstances shall Company receive more than an aggregate of fourteen (14)
Appears in 1 contract
Escrow. (i) Simultaneously On the Closing Date, Parent shall deposit with the 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 Escrow Agent the Escrow 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 and distributed by the Escrow Agent are referred pursuant to herein as the “terms and conditions of the Escrow Amount”)Agreement. The Escrow Agent Amount shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) belowconsist of an amount equal to $6,000,000 to satisfy Parent Losses, if any, pursuant to Article VII hereof.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from On the date of its receipt of which is twelve (12) months after the funds constituting the Escrow Amount until the soonest of:
Closing Date (A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, or if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of such date is not a termination by the CompanyBusiness Day, the immediately following Business Day) (the “Indemnification Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 caseTermination Date”), the Escrow Agent shall release to the Paying Agent, on behalf of each former Stockholder and Option Holder, an aggregate amount, if any, equal to (x) the remainder of the Escrow Amount constituting minus (y) the aggregate purchase price Unresolved Claim Amount as follows: of such date, it being understood and agreed that if the amount described in clause (1y) to equals or exceeds the Placement Agent, the fees payable to such Placement Agent (which fees shall be amount set forth in clause (x), then there would be no release of funds from the Escrow Amount at the Indemnification Escrow Termination Date. The escrow fund shall terminate as of the Indemnification Escrow Termination Date except to the extent that there are amounts withheld pursuant to the preceding sentence for Unresolved Claim Amounts (and the escrow shall continue with respect to such instructionswithheld amount), and such withheld amount (2or the applicable portion thereof) shall either be paid to the balance applicable Parent Indemnified Party or paid to the Paying Agent (on behalf of the aggregate purchase price former Stockholders and Option Holders), as applicable, in each case pursuant to the Company.
(iii) The Company a joint instruction letter executed by Parent and the Purchasers acknowledge and agree for the benefit Stockholder Representative upon final resolution 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 each such Claim in accordance with the written instructions from the Company and the Placement Agent, each of the responsibilities terms 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, 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 adviceArticle VII hereof.
(E) The Escrow Agent shall 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Simultaneously with the execution and delivery of this Agreement by a Purchaser, except as set forth in Schedule 2.1(d), such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing the “Aggregate Purchase Price (Subscription Amount)” on such Purchaser’s Subscription Amount signature page affixed hereto and opposite such Purchaser’s name thereon, to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) Agent set forth on Exhibit G H 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.176.18, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1I) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 such Purchaser; and (2II) 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 Company, Whitehall 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: (1I) the Placement Agent Fee to the Placement Agent, (II) the fees payable and expenses of counsel to the Placement Agent, to such Placement Agent (which fees shall be set forth in such instructions)counsel, and (2III) the balance of the aggregate purchase price to the Company.
(iii) The Company Company, Whitehall 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: (iI) 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; (iiII) is only responsible for (Aa) holding the Escrow Amount in escrow pending receipt of written instructions from the Company Company, Whitehall and the Placement Agent directing the release of the Escrow Amount, and (Bb) disbursing the Escrow Amount in accordance with the written instructions from the Company Company, Whitehall and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (Aa) and (Bb) 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”); (iiiIII) 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; and (vi) shall be authorized to receive from the Escrow Amount, on the applicable Closing Date, its reasonable fees and expenses as counsel to the Placement Agent as set forth in Section 2.1(d)(ii)(B) above. 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 Company, Whitehall and the Purchasers hereby indemnifies indemnify and holds hold 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 fraud, 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, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the such 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 Each of the Company, Whitehall and 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 Company, Whitehall and 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 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, Whitehall and 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 an independent successor escrow agent shall have been appointed and have accepted such appointment in a writing to both the Company Company, Whitehall and the Purchasers, then upon written notice thereof given to the Company, Whitehall, the Placement Agent, and each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the independent successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(II) if a an independent 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, Whitehall, the Placement Agent and each of the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company Company, Whitehall and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, Whitehall and the Placement Agent and all of the PurchasersAgent, or otherwise. In the event that any controversy arises between the Company Company, Whitehall and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. Escrow shall be opened within three (i3) Simultaneously with business days after the execution and delivery Effective Date. For purposes of this Agreement by a PurchaserAgreement, such Purchaser the "Close of Escrow" or the “Closing" shall promptly cause a wire transfer of immediately available funds mean the date on which the Deed (U.S. dollarsas defined in Paragraph 2A. below) is recorded in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account the Official Records of ▇▇▇▇▇▇ County. The Close of Escrow shall occur on or before the date which is thirty (30) days after the Approval Date (the “Closing Date”); provided, however, Buyer shall have the right, by delivery of written notice to Seller no less than three (3) business days prior to the Closing Date, to extend the Closing Date for up to thirty (30) days if needed to finalize Buyer’s acquisition financing for the Property; provided further that Buyer otherwise approves the Property, at which time the Deposit shall be deemed non-refundable to Buyer except in the event of default by Seller or as otherwise provided herein. At the time of the extension notice, Buyer will deposit an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) (“Additional Deposit”) which Additional Deposit shall be added to Deposit. The Additional Deposit shall not be required if Buyer does not extend the Closing. The Deposit and Additional Deposit (and all interest thereon) shall be credited toward the Purchase Price as Closing. The provisions hereof shall constitute joint instructions to Escrow Agent to consummate the purchase in accordance with the terms and provisions hereof; provided, however, that the parties shall execute such additional escrow instructions, not inconsistent with the provisions hereof, as may be deemed reasonably necessary to carry out the intentions of the parties as expressed herein. If there is a conflict between the provisions of the additional escrow instructions and the provisions of this Agreement, the provisions of this Agreement shall control. The cost of escrow shall be paid ½ by Buyer and ½ by Seller. Buyer shall pay the cost of its third party reports and any updates to the survey delivered to Buyer that may be required by Buyer or its lender. Each party shall pay its own legal fees. Any county and/or city documentary, deed, stamp, transfer taxes or other fees or charges associated with the recording of the Deed shall be paid by Seller. Seller shall pay the cost of the standard ALTA coverage premium for the Title Policy (as defined below). Buyer shall pay the ALTA extended coverage portion of the premium for the Title Policy and the premium for any endorsements to the Title Policy requested by Buyer (provided, however, Seller shall be responsible for the cost of any endorsements that Seller elects to procure to address any title matters disapproved by Buyer). All other closing costs shall be apportioned between Seller and Buyer in the manner customary in ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 2.1(d)(ii) belowCounty, Nevada.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Hines Global Reit Ii, Inc.)
Escrow. (ia) Simultaneously Concurrently with the execution and delivery of this Agreement, the Securityholder Representative and Parent shall enter into the Escrow 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 (with 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of Immediately following its receipt of the funds constituting Purchase Price, the Escrow Amount until the soonest of:
(A) in the case repayment of the termination outstanding Closing Date Indebtedness and the payment of this Agreement in accordance with Section 6.17the Acquisition Expenses outstanding as of the Closing Date, the Securityholder Representative Fee and the Company Common Securityholder Representative Fee, in which each case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Companypursuant to Section 2.13(a), the Escrow Agent shall return deposit the portion Escrow Amount in the Escrow Account, to be held by the Escrow Agent for the purpose of securing the obligations of the Company Securityholders set forth in Article VIII and Section 2.16 (the “Escrow Account”). The Escrowed Proceeds shall be held by the Escrow Agent pursuant to the terms of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, Agreement. The Escrowed Proceeds shall be held and disbursed solely for the purposes and in accordance with the event terms of a termination this Agreement and the Escrow Agreement.
(b) Except as otherwise provided in the Escrow Agreement, on the date that is the 12‑month anniversary of the Closing Date, the General Escrow Indemnification Amount Proceeds, minus the aggregate amount of Damages claimed by a Purchaserthe Parent Indemnified Parties pursuant to Section 8.1(a) (and not fully resolved prior to such date), shall be released to the Escrow Agent shall return for disbursement to the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, Company Securityholders 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 terms of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, this Agreement 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 CompanyAgreement.
(iiic) The Company Litigation Escrow Indemnification Amount Proceeds shall be released in accordance with the terms and the Purchasers acknowledge and agree for the benefit conditions set forth on Section 2.14(c) of the Escrow Agent Company Disclosure Letter.
(which d) The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be a third party beneficiary the owner of this Section 2.1(d)) the Escrowed Proceeds, as follows:
(A) The Escrow Agent: (i) is not responsible for the performance reduced from time to time 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 amounts distributed from 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 Account 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, 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 Escrow Agreement, and that all interest on or other taxable income, if any, earned from 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 investment 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 Escrowed Proceeds pursuant to this Agreement or shall be treated for Tax purposes as earned by Parent until the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 Escrowed Proceeds are distributed in accordance with this provision, Agreement. Any and all distributions from the Escrow Agent Account to the Company Stockholders pursuant to the Escrow Agreement shall thereupon be relieved characterized for federal, state and local income tax purposes, as consideration payable in exchange for the Company Stock held by such Company Stockholders eligible for installment sale treatment pursuant to Section 453 of all further obligations and released from all liability hereunderthe Code (other than any amounts treated as interest under Section 483 of the Code).
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. With respect to each Purchaser that has not agreed to wire its Subscription Amount directly to the Company:
(i) Simultaneously with the execution and delivery of this Agreement by a 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 AgentAgents, the fees payable to such Placement Agent 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 Agent 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 Agent Agents in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent 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 consents consent to permit the Escrow Agent to represent the Placement Agent 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 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 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 Agent Agents and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Lead Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Lead Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ardea Biosciences, Inc./De)
Escrow. (a) The Deposit shall be held in escrow in an interest bearing trust account by Escrow Agent until delivered as herein provided. Purchaser agrees to provide the Escrow Agent with its Federal Tax Id number in order that the Escrow Agent may open the interest bearing sub-account. Any interest earned on the Deposit shall be paid to whichever party is entitled thereto. Such interest shall not be credited against the Price. The Deposit shall be held and disbursed by Escrow Agent in the following manner:
(i) Simultaneously with to Seller at the execution and delivery closing upon consummation 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 2.1(d)(ii) below.closing; or
(ii) The to Seller upon receipt of written demand therefor, stating Purchaser has defaulted in the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default; provided, however, that Escrow Agent shall continue not honor such demand until at least five (5) days after it has sent a copy of such demand to hold the Purchaser, nor thereafter if Escrow Amount in escrow Agent shall have received written notice of objection from Purchaser in accordance with and subject the provisions of clause (b) of this Section 1.4; or
(iii) to this Agreement, from the date of its Purchaser upon receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17written demand therefor, 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, stating that either (x) deposit that portion of this Agreement has been terminated pursuant to a provision hereof and certifying the Escrow Amount to be returned to basis for 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 fundstermination, or (y) continue 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 hold the Deposit under the provisions of this Agreement; provided, however, that Escrow Agent shall not honor such portion demand until at least five (5) 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 Escrow Amount pending provisions of clause (b) of this Section 1.4.
(b) Upon receipt of written wire transfer instructions from such demand for the Deposit by Purchaser or an order from Seller pursuant to clause (ii) or (iii) of Section 1.4(a), Escrow Agent shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within three business (3) days after Escrow Agent sends 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, Escrow Agent shall promptly send a copy thereof to the party who made the written demand.
(c) In the event of any disputes between the parties, Escrow Agent, at its option, may disregard all instructions received and may 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 judgment of a court of competent jurisdiction; OR.
(Bd) in 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 event Escrow Agent shall release 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 Amount constituting the aggregate purchase price as follows: Agent shall be entitled (1but not obligated) to refrain from taking any action other than to keep safely the Placement Agent, the fees payable to such Placement Deposit until Escrow Agent (which fees shall be set forth instructed otherwise in such instructions)writing signed by both Seller and Purchaser, and (2) the balance or by final judgment of the aggregate purchase price to the Companya court of competent jurisdiction.
(iiie) 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 upon, and shall be protected in acting or refraining from acting upon 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 Personparty 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 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 for any action taken, taken or 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.
(Bg) The 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 liable to anyone for any action taken unreasonably withheld 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 Dutiesdelayed. 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, 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 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 After 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(Gh) The provisions 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 Section 2.1(dAgreement. 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 survive any termination be jointly and severally responsible for the reimbursement to Escrow Agent of all expenses, disbursements and advances (including reasonable attorney’s 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 the terms of this Agreement.
Appears in 1 contract
Sources: Agreement of Sale (Bioject Medical Technologies Inc)
Escrow. As partial security against (i) Simultaneously with the execution and delivery termination of this Agreement by a PurchaserBuyer pursuant to Section 9.5 below, such Purchaser (ii) any indemnification claims by the Buyer pursuant to Section 6.7 of this Agreement, (iii) any Pre-Closing Revenue Deficiency, and/or (iv) any Post-Closing Revenue Deficiency, upon full execution hereof, Buyer shall promptly cause a wire transfer of immediately available funds (U.S. dollars) deposit the Deposit Shares in an amount representing such Purchaser’s Subscription Amount escrow account (the “Escrow Account”) to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC established with Globex Transfer LLC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being ). The Deposit Shares shall be held in escrow by the Escrow Agent are referred pursuant to herein the terms and conditions of an Escrow Agreement in the form attached hereto as Exhibit C (the “Escrow AmountAgreement”). The Subject to Section 2.5(a) and 2.5(b) below, (i) promptly following completion of FRLF’s audit of the Assets by its auditor, the Buyer and the Sellers shall execute a joint instruction to the Escrow Agent shall hold directing the Escrow Amount Agent to deliver a 50% portion of the Deposit Shares remaining in escrow in accordance with Section 2.1(d)(ii) below.
the Escrow Account at such time to the Sellers’ Representative on behalf of the Sellers, and (ii) The Escrow Agent promptly following 4 months subsequent to the Closing unless there is a disagreement between the Buyer and the Sellers, the Buyer and the Sellers shall continue execute a joint instruction to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds directing the Escrow Agent to deliver any portion of the Escrow Amount, then: (1) Deposit Shares remaining in the Escrow Account at such time to the Sellers’ Representative on behalf of the Sellers. The scheduled distribution dates in this Section 2.5 shall each be referred to as a “Release Date”.
(a) In the event of a termination by that, prior to 5 months subsequent to the CompanyClosing, the Escrow Agent Sellers shall return be obligated to pay any amounts due to the portion of Buyer under (i) any settlement agreement between the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 fundsparties, or (yii) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser any judgment or an order from a court of competent jurisdiction; OR
jurisdiction (B) which judgment or order is final and either non-appealable or the deadline to make appeal therefrom shall have passed), in either case, regarding any claims for Losses made by the case Buyer pursuant to Section 6.7 of this Agreement, then the Closing, receipt of written instructions from the Company Buyer and the Placement Agent that the Closing Sellers shall have been consummated, in which case, promptly execute a joint instruction to the Escrow Agent shall release directing the Escrow Amount constituting Agent to deliver a number of the aggregate purchase price as follows: (1) Deposit Shares remaining in the Escrow Account to the Placement Agent, the fees payable FRLF equal to such Placement Agent amounts divided by $0.23/share (which fees shall be set forth in such instructionsalong with duly executed stock powers sufficient to reissue the shares to FRLF), and (2) the remaining balance of the aggregate purchase price Deposit Shares held, if any, pursuant to the Company.
(iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which Agreement 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 retained in accordance with the written instructions from the Company terms of this Section 2.5 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 addressAgreement.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(Fb) In the event that the Buyer shall have made claim(s) for Losses pursuant to Section 6.7 of this Agreement and such indemnification claim(s) remain outstanding as of a Release Date, then the Deposit Shares scheduled to be released to the Stockholders on such Release Date shall only be delivered to the Stockholders to the extent that the amount of such indemnification claim(s) (the “Claim Amount”), is less than the amount of Deposit Shares that would be held pursuant to the Escrow Agreement after giving effect to such scheduled release multiplied by $0.23/share, in which case, (i) promptly following the Release Date, the Buyer and the Sellers shall execute a joint instruction to the Escrow Agent directing the Escrow Agent to deliver to Sellers an amount of the Deposit Shares equal to the amount of Deposit Shares scheduled to be released to the Sellers on such Release Date, subject to any reduction needed to ensure that the amount of the Deposit Shares that would be held pursuant to the Escrow Agreement after giving effect to such release equal the Claim Amount divided by $0.23/share, (ii) the Buyer and the Stockholders shall execute any required amendments to the Escrow Agreement in order to extend the period of the Escrow Agreement, and (iii) the portion of the Deposit Shares then held pursuant to the Escrow Agreement equal to the Claim Amount divided by $0.23/share shall remain held in escrow pending the resolution of such indemnification claim. Upon resolution of such outstanding indemnification claim(s), either by mutual agreement of the parties or pursuant to a judgment or order from a court of competent jurisdiction (which judgment or order is final and either non-appealable or the deadline to make appeal therefrom shall have passed), the Buyer and the Sellers shall promptly execute a joint instruction to the Escrow Agent directing the amount of Deposit Shares then held pursuant to the Escrow Agreement to be uncertain delivered to (i) Buyer for any amounts which Buyer is entitled to receive as a result of the resolution of such outstanding indemnification claims(s), and (ii) the Sellers for the amount, if any, by which a prior release was reduced to its duties or rights hereunder or shall receive instructions with ensure that the amount of Deposit Shares that would continue to be held pursuant to the Escrow Agreement were equal to the Claim Amount divided by $0.23/share and, if subsequent to 4 months following the Closing Date, any remaining balance pursuant to the Escrow Agreement.
(c) 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 Sellers’ obligations to indemnify for Losses pursuant to Section 6.7 of this Agreement, the Escrow Agent Buyer shall have the absolute right to suspend all further performance of its duties make demand for payment under this Agreement (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of the Purchasers, Agreement prior to instituting any proceedings or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or taking any other party with respect action against the Sellers, unless the failure to this Agreement institute proceedings or take such other action shall prejudice the Escrow Amount, the Escrow Agent shall not be required Buyer’s ability to determine the proper resolution of make such controversy or the proper disposition of the Escrow Amountindemnification claim, and shall have the absolute rightany amounts owed to Buyer pursuant to Section 6.7 of this Agreement, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions after application of this Section 2.1(d) 2.5, shall survive any termination of this Agreementbe paid to Buyer in cash.
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) Simultaneously the Acquisition and Additional Financing are not consummated on or prior to March 31, 2011, 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 the execution and delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) commitment fee in an amount representing such Purchaser’s Subscription Amount equal to be paid to a non-interest bearing escrow account 4% per annum in respect of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being 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 (x) 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 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 Escrow Agent are referred to herein as funds while held and invested in escrow, and (z) interest on the notes will accrue at the rate specified opposite “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, Interest” above from the date of its receipt of on which the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, thennotes were originally issued. Registration Rights: (1) in the event of MMR will enter into a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 registration rights agreement for the benefit of the Escrow Agent holders of the notes, pursuant to which it will agree to file a shelf registration statement under the Securities Act of 1933, as amended (which shall be deemed the “Securities Act”), relating to be a third party beneficiary the resale of this Section 2.1(d)) as follows:
(A) The Escrow Agent: the notes and the shares of common stock issuable upon conversion thereof. MMR will use its commercially reasonable efforts (i) is not responsible for to cause such shelf registration statement to become effective no later than 30 days after the performance by the Company, the Purchasers or Placement Agent date of this Agreement or any original issuance of the Transaction Documents or for determining or compelling compliance therewith; notes, and (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 keep 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and date that all of the Purchasers, notes and the MMR common stock issuable upon conversion thereof cease to be outstanding or have either been (x) 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 notes 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 affiliates) without restriction pursuant to the volume limitations of Rule 144 under the Securities Act or any successor rules thereto 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (McMoran Exploration Co /De/)
Escrow. (i) Simultaneously with the execution and delivery Notwithstanding any other provision of this Agreement to the contrary, at the Closing, Ten percent (10%) of the total cash amount to be paid to the Shareholders pursuant to Section 2.06(b) shall not be paid or issued to the Shareholders but shall instead be deposited by a PurchaserParent with Wells Fargo Bank, such Purchaser as escrow agent (the "Escrow Agent"), which shall promptly cause a wire transfer b▇ ▇▇▇d by the Escrow Agent until the completion of immediately available funds and the delivery by Parent to the Shareholder Representative of the Closing Date Balance Sheet, and resolution of any related disagreements that may arise pursuant to Section 2.07(c) hereof, pursuant to an Escrow Agreement substantially in the form of Exhibit D attached hereto (U.S. dollarsthe "Escrow Agreement"), and distributed in accordance with the terms thereof. In addition, one third (1/3rd) in an amount representing such Purchaser’s Subscription of the Parent Common Stock comprising the Common Equity Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Shareholders pursuant to Section 2.06(b) shall not be paid or issued to the Shareholders but shall instead be deposited by Parent with the Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being , which shall be held in escrow by the Escrow Agent are until the completion of the Milestones and the resolution of any related disagreements that may arise pursuant to Section 2.09 hereof, pursuant to the Escrow Agreement, and distributed in accordance with the terms thereof. The aggregate cash to be deposited into escrow pursuant to this Section 2.08 is referred to herein as the “"Escrow Amount”). Cash Consideration." The Escrow Agent shall hold the Escrow Amount in shares of Parent Common Stock to be deposited into escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject pursuant to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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) 2.08 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 herein as the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address"Earn Out Shares.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement."
Appears in 1 contract
Sources: Merger Agreement (Powerhouse Technologies Group Inc)
Escrow. (ia) Simultaneously Prior to the Closing, the Seller Representative and the Purchaser shall enter into an Escrow Agreement with the execution Escrow Agent substantially in the form attached hereto as Exhibit A, subject to any changes as may be required by the Escrow Agent and delivery of this Agreement by a Purchaser, such as shall be reasonably acceptable to the 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 and the Seller Representative (the “Escrow AgentAgreement”). At the Closing, (i) the Purchaser shall deposit Ten Million United States Dollars ($10,000,000) (the “Indemnity Escrow Amount”) set forth on Exhibit G attached hereto with the Escrow Agent in accordance with Section 2.7 (the aggregate amounts received being Transactions to Be Effected at Closing) to be held in an escrow account by the Escrow Agent are referred to herein as for the purpose of securing the indemnification obligations of the Seller set forth in Article IX (the “Indemnity Escrow Account”) and (ii) the Purchaser shall deposit Seventy-Five Million United States Dollars ($75,000,000) (the “Adjustment Escrow Amount” and, together with the Indemnity Escrow Amount, the “Escrow AmountAmounts”) 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 securing the payment obligations of the Seller Representative (if any) with respect to any post-closing adjustments as set forth in Section 2.8 (Post-Closing Adjustment) (the “Adjustment Escrow Account” and, together with the Indemnity Escrow Account, the “Escrow Accounts”). The Escrowed Cash shall be held by the Escrow Agent shall hold pursuant to the terms of the Escrow Amount Agreement. The Escrowed Cash 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 and in escrow accordance with the terms of this Agreement and the Escrow Agreement.
(b) Except as otherwise provided in this Agreement and the Escrow Agreement, the Escrowed Cash with respect to the Indemnity Escrow Account (other than any amounts in respect of the Indemnity Escrow Account to be distributed to the Purchaser pursuant to Section 2.4(c)) shall be released to the Seller on the first anniversary of the Closing Date, and in accordance with the terms of the Escrow Agreement. Except as otherwise provided in this Agreement and the Escrow Agreement, the Escrowed Cash with respect to the Adjustment Escrow Account (other than any amounts in respect of the Adjustment Escrow Account to be distributed to the Purchaser pursuant to Section 2.4(c)) shall be released to the Seller in accordance with Section 2.1(d)(ii) below2.8 (Post-Closing Adjustment), and in accordance with the terms of the Escrow Agreement.
(iic) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreementparties hereto agree that, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Companyfor Tax reporting purposes, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 the owner of this Section 2.1(d)) the Escrowed Cash, as follows:
(A) The Escrow Agent: (i) is not responsible for the performance reduced from time to time by the Company, the Purchasers or Placement Agent amount of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding funds distributed from 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 Accounts 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, 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 Escrow Agreement, and that all interest on or other taxable income, if any, earned from 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 investment 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 Escrowed Cash pursuant to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected treated for Tax purposes as earned by the Escrow Agent 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 Purchaser until the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such court Escrowed Cash is distributed in accordance with this provision, Agreement and the Escrow Agent Agreement. The parties hereto agree that an amount equal to 40% of any and all interest, gains and other distributions and income earned on the Escrow Accounts shall thereupon be relieved solely for the account of the Purchaser (and all further obligations and released such amounts shall be distributed to Purchaser from all liability hereunderthe Escrow Accounts in accordance with the Escrow Agreement).
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (Alcoa Inc)
Escrow. (i) Simultaneously with the execution and delivery Notwithstanding any provision of this Agreement by a Purchaserto the contrary, such (a) except as set forth in Section 9.5(b), the Purchaser Indemnitees shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription have recourse only against the undisbursed Indemnification Escrow Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC and the income, interest, increments and gains earned on the Indemnification Escrow Amount (the “Escrow AgentIndemnification Escrowed Funds”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred with respect to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 PurchaserDamages, 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 terms of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, Agreement 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
(Bb) 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 no event will Seller 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 liable 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 Damages or otherwise 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 matter 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 way 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition transactions contemplated hereby other than out of the Escrow Amountundisbursed Indemnification Escrowed Funds, except (i) for claims for indemnification for Damages pursuant to Section 9.2(a)(i) for breaches or inaccuracies of the representations and shall have warranties of the absolute rightSeller and the Company set forth in Sections 3.4 (Authority; Authorization; Enforceability), in its sole discretion3.7 (Brokers), to deposit 3.8 (Capitalization of the Escrow Amount with the clerk Acquired Companies) and 3.9 (Rights; Warrants or Options) and any claims for intentional fraud, or (ii) payment of a court selected by the Escrow Agent 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 any Purchase Price Decrease (if any) out of or in connection with the Escrow AmountPurchase Price Escrowed Funds pursuant to Section 2.4(c)(iii). Upon To the deposit by extent that any Purchaser Indemnitee is entitled to indemnification from the Escrow Agent Seller pursuant to this Article 9, including out of the Escrow Amount with the clerk of such court in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of Indemnification Escrowed Funds under this Section 2.1(d9.5, such Purchaser Indemnitee shall first recover any Damages from the undisbursed Indemnification Escrowed Funds prior to pursuing recovery directly from the Seller, except (i) shall survive for claims for indemnification for Damages pursuant to Section 9.2(a)(i) for breaches or inaccuracies of the representations and warranties of the Seller and the Company set forth in Sections 3.4 (Authority; Authorization; Enforceability), 3.7 (Brokers), 3.8 (Capitalization of the Acquired Companies) and 3.9 (Rights; Warrants or Options) and any termination claims for intentional fraud, or (ii) for payment of this Agreementany Purchase Price Decrease (if any) pursuant to Section 2.4(c)(iii).
Appears in 1 contract
Sources: Stock Purchase Agreement (Rti International Metals Inc)
Escrow. (i) Simultaneously with the execution and delivery of this Agreement The funds received 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 Gibraltar Bank (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being in accordance with Section 2.2 of this Agreement shall be held in escrow by pursuant to the Escrow Agent are referred to herein as terms and conditions of this Section 2.3 of the “Escrow Amount”)Agreement. The funds shall be held in a non-interest bearing account. The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of disburse the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, 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 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, or as the Placement Agent and the Purchasers at least ten (10) calendar days prior Company shall in writing direct, upon receipt of written confirmation to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease from WindsorTech and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow AmountB▇▇▇▇▇ Partners, 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 Company and the Placement Agent in form and formality satisfactory LP pursuant to the Escrow Agent.
(F) In Agreement of even date herewith, that all closing contingencies have been met. If the event that closing of such transaction has not taken place by the Escrow Agent shall be uncertain closing date as to its duties defined in this Agreement, or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, closing date as extended as defined 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 return such funds to the absolute right Investors immediately and shall return all executed documents to suspend all further performance the Company. The Investors and the Company, jointly and severally, agree to indemnify Escrow Agent for, and to hold it harmless against, any loss, liability, damage or expense incurred by Escrow Agent arising out of, or in connection with, this Agreement, any litigation arising in connection with this Agreement or any transaction related in any way hereto, including but not limited to attorneys' fees incurred by Escrow Agent in the event of any question as to the provisions hereof or its duties under this Agreement hereunder, and other costs and expenses incurred by Escrow Agent in fulfilling its duties and responsibilities hereunder, or incurred by Escrow Agent defending itself against any claim of liability (except other than, in all such cases, for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of the Purchasers, willful misconduct or otherwisegross negligence). In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall have no duties arising from this Agreement except those expressly set forth in this Section 2.3 and it shall not be required to determine the proper resolution bound by any notice of such controversy claim or the proper disposition of the Escrow Amountdemand, and or any waiver, modification or amendment unless it shall have the absolute right, in given its sole discretion, to deposit the Escrow Amount with the clerk prior written consent thereto. Page 4 of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.26
Appears in 1 contract
Sources: Stock Purchase Agreement (Qsgi Inc.)
Escrow. (ia) Simultaneously Within [***] after REGENXBIO’s request, the Parties and the Escrow Agent will enter into an agreement pursuant to which the Escrow Materials will be deposited with the execution Escrow Agent 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 released to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC REGENXBIO under certain conditions (the “Escrow AgentAgreement”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by ). REGENXBIO will pay the Escrow Agent 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 referred to herein as necessary for or used in the Manufacture of the Clearside Device (the “Escrow AmountMaterials”). The deposit of the Escrow Materials with the Escrow Agent shall hold will not affect Clearside’s right, title or interest in or to the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) belowMaterials.
(iib) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if will require the Escrow Agent then holds any portion of to release the Escrow Amount, then: (1) Materials to REGENXBIO in the event an Insolvency Proceeding is instituted by or against Clearside or in the event of a termination by an Alternative Manufacturer Election if Clearside does not fulfill its obligations under Section 5.4.2(b)(x), (y) and (z) (any such event, “Escrow Release”). In the Companyevent of an Escrow Release, the Escrow Agent shall return the portion REGENXBIO will be entitled to full use of the Escrow Amount received from each Purchaser which it then holds, Materials as necessary or useful to each such Purchaser, and Manufacture Clearside Devices in the event furtherance of a termination by a Purchaser, the Escrow Agent shall return the portion REGENXBIO’s exercise of the Commercial License. After Escrow Amount received Release, REGENXBIO will Certain information has been excluded from this agreement (indicated by “[***]”) because 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: information (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; material and (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 would 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 counselcompetitively harmful if publicly disclosed. 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, 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 have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation use the Escrow Agent Duties) by giving written notice of its resignation Materials and will have the right to Manufacture Clearside Devices within 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 scope 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentlicense under Section 3.1.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Option and License Agreement (Clearside Biomedical, Inc.)
Escrow. (ia) Simultaneously with Notwithstanding Section 2.2(a) hereof and Section 2.4(a) hereof, an aggregate of $5,000,000 in cash shall be withheld from the execution aggregate amount payable to Common Holders in respect of Common Shares pursuant to Section 2.2(a) hereof and delivery to Option Holders in respect of this Agreement by a PurchaserOptions pursuant to Section 2.4(a) hereof. Parent instead shall, at the Effective Time, deliver such Purchaser shall promptly cause a wire transfer of amount to the Escrow Agent in immediately available funds (U.S. dollars) in an by wire transfer deposit pursuant to the Escrow Agreement. This 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 initially deposited with the Escrow Agent are is referred to herein as the “Indemnity Escrow Amount.”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(iib) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with Notwithstanding Section 2.2(a) and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(ASection 2.4(a) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaserhereof, and in addition to the event cash amount specified in Section 2.5(a) hereof, an aggregate of a termination by a Purchaser, the Escrow Agent $4,000,000 in cash 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 be withheld 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 amount payable to Common Holders in respect of Common Shares pursuant to Section 2.2(a) hereof and to Option Holders in respect of Options pursuant to Section 2.4(a) hereof. Parent instead shall, at the Effective Time, deliver such Placement Agent (which fees shall be set forth in such instructions), and (2) the balance of the aggregate purchase price amount 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 immediately available funds by wire transfer deposit pursuant to the part of Escrow Agreement. This amount initially deposited with the Escrow Agent is referred to herein as the “Special Escrow Amount.”
(collectivelyc) The portion of the Indemnity Escrow Amount and Special Escrow Amount contributed on behalf of each Common Holder and each Option Holder shall be in proportion to the aggregate portion of the Common Equivalent Number attributable to such Common Holder or Option Holder, as applicable. Notwithstanding the foregoing or anything to the contrary 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 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 “Escrow Agent Duties”); (iii) shall not be obligated parties intend and hereby agree 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 treat 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 portion of any action taken, suffered distributions from the Indemnity Escrow Account or omitted by it hereunder in good faith and the Special Escrow Amount to Common Holders as a payment of interest 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 addressCode §483.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Affymetrix Inc)
Escrow. (i) Simultaneously with the execution and delivery of this Agreement by a PurchaserAt Closing, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount deliver to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC Fargo, N.A. (the “Escrow Agent”) set forth on Exhibit G attached hereto an amount equal to Five Million One Hundred Thousand and No/100ths Dollars (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as $5,100,000) (the “Escrow Amount”, and together with any interest or other earnings thereon, collectively, the “Escrow Funds”) by certified or bank cashier’s check or wire transfer, which Escrow Funds shall be held back from the Purchase Price for a period of two (2) years following the Closing pursuant to the terms of the Escrow Agreement to be entered into as of the Closing Date (the “Escrow Agreement”) in a form to be agreed upon between Purchaser and Seller. The Escrow Funds shall be governed by and in accordance with the terms of the Escrow Agreement and may be drawn upon by Purchaser in payment of any Losses incurred by Purchaser or the Company arising out of, based upon, relating to, or in connection with (i) any Working Capital Adjustment payable to Purchaser pursuant to Section 1.4(f), above (to the extent such amounts have not been paid by Seller within the ten-day period set forth in Section 1.4(f)), or (ii) claims for indemnification under Section 9.1, in each case subject to the procedures and limitations set forth herein or in the Escrow Agreement. The Escrow Agent shall hold deliver to Seller the amount of remaining Escrow Funds held in escrow on the date which is two (2) years from the Closing Date except to the extent, prior to said date, Purchaser provides to Escrow Agent and Seller a written statement executed by Purchaser setting forth any pending or threatened claims or other matters in the categories provided in parts (i)-(ii) of this Section 2.11. Purchaser and Seller shall each be responsible for fifty percent (50%) of all costs and expenses of the Escrow Amount Agent. Seller shall remain in escrow existence and in accordance with Section 2.1(d)(iigood standing so long as the Escrow Agreement remains in effect. Notwithstanding the foregoing, within five (5) below.
business days after request by Seller, but in no event before the first anniversary of the Escrow Agreement, Seller may instruct the Escrow Agent to release to Seller an amount (if greater than zero) equal to (i) $2,550,000 minus (ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with aggregate amount of any outstanding and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if unresolved claims received by the Escrow Agent then holds any portion on or prior to the first anniversary of Closing minus the aggregate amount released from the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Account to Purchaser which it then holds, to each such Purchaser, and 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) Indemnitees prior to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions), and (2) the balance first anniversary of the aggregate purchase price to the Company.
(iii) The Company and the Purchasers acknowledge and Closing. All parties hereto 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 Agentall Tax purposes that: (i) is not responsible for Purchaser shall be treated as the performance by owner of the CompanyEscrow Funds, the Purchasers or Placement Agent of this Agreement or any portion thereof, shall be allocable to Purchaser pursuant to Section 468B(g) of the Transaction Documents or for determining or compelling compliance therewith; Code and Proposed Treasury Regulation Section 1.468B-8, (ii) is only responsible for (A) holding if and to the Escrow Amount in escrow pending receipt of written instructions from the Company and the Placement Agent directing the release extent any amount of the Escrow AmountFunds is actually distributed to Seller, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code, (iii) Seller’s right to the Escrow Funds under this Agreement shall be treated as installment obligations for purposes of Section 453 of the Code, and (Biv) disbursing in no event shall the aggregate payments under 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 Funds 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; Seller exceed $5,800,000. Clause (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 preceding sentence is intended 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, 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 have ensure that 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 Company and the Placement Agent in form and formality satisfactory Seller to the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain Funds is not treated 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 a contingent payment without a stated maximum selling price under this Agreement (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all Section 453 of the Purchasers, Code and the Treasury Regulation promulgated thereunder. No party hereto shall take any action 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount filing position for Tax purposes inconsistent with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderforegoing.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Purchaser and the Sellers hereby appoint the Escrow Agent to serve in such capacity hereunder. Simultaneously with the execution and delivery of this Agreement by a Agreement, 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 the Purchase Price, to be paid to a non-interest bearing an escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) Agent set forth on Exhibit G 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 Purchaser 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 Amount, Debentures, New Debentures and Stock Powers in escrow in accordance with Section 2.1(d)(ii1(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 continue to hold the Escrow Amount Amount, the 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 AgreementAgreement until the receipt of written instructions signed by the Sellers, from the date of its Purchaser and the Company that the conditions to the Closing have been satisfied (the "Release Instructions"). Upon receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 CompanyRelease Instructions, the Escrow Agent shall return the portion release to Sellers that part of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and in constituting the event of a termination by a Purchaser, the Escrow Agent shall return the portion Purchase Price set forth opposite Sellers’ name on column (7) of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, Securities Schedule attached hereto in accordance with written wire transfer instructions received from Sellers, and shall release to Purchaser the Purchaser; 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 (2the "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 not received written wire transfer instructions from any delivered the Delivery Confirmation to the Sellers, Purchaser before the 30th day after such termination date, then may instruct the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of to deliver to the Purchaser the Escrow Amount and if Purchaser delivers such instruction, contemporaneously with the delivery of the foregoing 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 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 deposited funds, or (y) continue notice to hold such portion of the Escrow Amount pending Agent and deliver the Option 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 written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) in Exercise Notice, the case of Escrow Agent shall submit the Closing, receipt of written instructions from Remaining Debentures to the Company and the Placement Agent that Company shall re-issue a certificate for the Closing shall have been consummatedRemaining 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 which casethe 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 Escrow Amount constituting the aggregate purchase price as follows: (1) Remaining Debentures so purchased to the Placement AgentPurchaser 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 fees payable to such Placement Escrow Agent (which fees shall be set forth in such instructions), and (2) return the balance of the aggregate purchase price Remaining Debentures not subject to an Exercise Notice to the CompanySellers.
(iiiiv) The Company and the Purchasers acknowledge and agree for the benefit of 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 shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:the Escrow Agent or the parties may act.
(Av) The Escrow Agent: (i) is not responsible for the performance 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 CompanyEscrow Agent to be genuine, 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 and the Escrow Amount in escrow pending receipt Agent may assume that any person purporting to give it any notice on behalf of written instructions from the Company and the Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount any party in accordance with the written instructions from the Company provisions hereof has been duly authorized to do so. The Purchaser and the Placement Agent, each of the responsibilities of Sellers acknowledge that the Escrow Agent in clause (A) is acting solely as a stakeholder at their request and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on that 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 by Escrow Agent in good faith and believed by Escrow Agent to be taken authorized or within the rights or powers conferred upon Escrow Agent by it hereunder, except in this Agreement and shall not be under any duty to give the case property held by Escrow Agent hereunder any greater degree of care beyond what Escrow Agent’s gross negligence or willful misconduct in breach of Agent gives its own similar property. The Purchaser and the Sellers hereby jointly and severally agree to indemnify and save 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, liabilitydamage, costclaims, damage liabilities, judgments and expense, including, without limitation, reasonable counsel fees other costs and expenses, expenses of every kind and nature which may be incurred by the Escrow Agent may suffer or incur (including attorneys' fees) by reason of any actionits acceptance of, claim and its performance under, this Agreement unless caused by the gross negligence, willful misconduct or proceeding brought against fraud of the Escrow Agent. Absent the Escrow Agent's gross negligence, willful misconduct or fraud, the Escrow Agent arising out shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent's distribution of or relating to the performance Escrow Amount and the Purchased Preferred Shares and the Purchased Warrants in accordance with the provisions of this Agreement.
(vi) This Agreement sets forth exclusively the duties of the Escrow Agent Dutieswith respect to any and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
(vii) The 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, except to and each the extent Sellers and the Company expressly waive any actual or potential conflict of interest which may be caused by such action, claim representation or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence such dual roles 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(Gviii) The provisions of this Section 2.1(d1(g) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Axion International Holdings, Inc.)
Escrow. (i) Simultaneously with the 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 13.1 Escrow Agent is ▇▇▇▇▇▇ appointed and designated to act as ▇▇▇▇▇▇ Agent hereunder and is instructed to hold and deliver, pursuant to the terms of this Agreement, the documents and funds to be deposited into escrow as provided in this Agreement.
13.2 Escrow Agent shall not be bound in any way by any other agreement or contract between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof. Escrow Agent’s only duties and responsibilities shall be to hold the Deposit and other documents delivered to it as agent and to dispose of the Deposit and such documents in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, Escrow Agent shall have no responsibility to protect the Deposit, or to place the Deposit in an account that is not sufficiently FDIC insured, and shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit from any cause, other than Escrow Agent’s gross negligence or willful misconduct. Escrow Agent may, at the expense of Seller and Purchaser, consult with counsel and accountants in connection with its duties under this Agreement. Escrow Agent shall not be liable to the parties hereto for any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel and accountants. Escrow Agent shall not be obligated to take any action hereunder that may, in its reasonable judgment, result in any liability to it unless Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
13.3 Seller and Purchaser hereby indemnify Escrow Agent and hold it harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which it may incur or with which it may be threatened, directly or indirectly, arising from, or in any way connected with, this Agreement, unless such claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings, or any such other expenses, fees, or charges, shall be due to willful and malicious breach of this Agreement or gross negligence on the part of Escrow Agent.
13.4 All parties to this Agreement acknowledge and agree that Escrow Agent shall not be liable to any party or person whomsoever for any action taken in good faith, including, but not limited to, the misdelivery to Purchaser or Seller of documents or funds subject to escrow hereunder, unless such action, including misdelivery, shall be due to willful and malicious breach of this Agreement or gross negligence on the part of Escrow Agent. Escrow Agent is acting as a stakeholder only with respect to the Deposit and other documents to be delivered hereunder. If there is any dispute as to whether Escrow Agent is obligated to deliver the Deposit or such documents or as to whom the Deposit or such documents are to be delivered, Escrow Agent shall not make any delivery, but shall hold the Deposit and such documents until receipt by Escrow Agent of an authorization in writing, signed by Seller and Purchaser, directing the disposition of the Deposit and such documents, or, in the absence of authorization, ▇▇▇▇▇▇ Agent shall hold the Deposit and such documents until the final determination of the rights of the parties in an appropriate proceeding. Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, instruction, instrument, document or other item delivered to it, and it shall be fully protected in acting in accordance with any written notice, direction or instruction given to it under this Agreement and believed by it to be authentic. If written authorization is not given, or proceedings for a determination are not begun, within thirty (30) days after the Closing Date and diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit and documents with a court of the State of Florida pending a determination. Escrow Agent shall be reimbursed for all costs and expenses of any action or proceeding, including, without limitation, reasonable attorneys’ fees and disbursements incurred in its capacity as Escrow Agent, by the non-prevailing party. Upon making delivery of the Deposit and documents in the manner provided in this Agreement, Escrow Agent shall have no further liability hereunder. In no event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding that may arise between Seller and Purchaser in connection with the Deposit or documents.
13.5 Seller acknowledges that the Escrow Agent is Purchaser’s attorney, and that Escrow Agent is hereby authorized to represent Purchaser and/or itself with respect to this transaction and in any litigation relating thereto and, in any event, Escrow Agent may continue to serve as both Escrow Agent and attorney for Purchaser. Seller shall not object to, and is hereby estopped from objecting to, such representation.
13.6 All notices required or permitted to be sent to Escrow Agent shall be in writing and shall be hand delivered or sent by recognized overnight courier (such as UPS or FedEx) addressed as follows: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ PC (the “Law Group, PLLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Suite 303, Miami, FL 33133, with a copy to ▇▇▇▇▇@▇- ▇▇▇.▇▇▇, or to such other address as shall, from time to time, be supplied in writing by 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each Any such Purchaser, and 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 given upon receipt 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 addressaddressees.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Escrow. (ia) Simultaneously with The Escrow Agent shall deposit the execution and delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) Escrow Fund in an amount representing such Purchaser’s Subscription Amount interest-bearing account that it maintains with JP Morgan Chase Bank. The Escrow Agent shall be under no duty to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇maxi▇▇▇▇ ▇▇▇▇▇▇▇ PC rate of return on the Escrow Fund or to insure against any reduction in the value of the Escrow Fund. Any increase or decrease in the value of the Escrow Fund shall inure to the party to which the Escrow Fund is disbursed.
(b) If the “Property is conveyed to Purchaser in accordance with the terms and provisions of this Agreement or if this Agreement shall be terminated for any reason other than the default of Seller or its inability or unwillingness to convey the Property to Purchaser in accordance with the terms and provisions of this Agreement, then the Escrow Agent”) set forth on Exhibit G attached hereto (Fund, inclusive of the aggregate amounts received being held interest, but without credit for the interest against the Purchase Price, shall be disbursed to Seller. If the Property is not conveyed to Purchaser in escrow by accordance with the terms and provisions of this Agreement and this Agreement shall be terminated due to the default of Seller or its inability or unwillingness to convey Acceptable Title to the Real Property or if Purchaser terminates this Agreement pursuant to Section 12, then the Escrow Fund shall be disbursed to Purchaser. Notwithstanding any contrary provision herein, the Escrow Agent are referred shall retain the Hold Back Amount received by it hereunder for refund to herein as Seller (subject to any claim by Purchaser that Seller has failed in the “Escrow Amount”). The Escrow Agent payment and performance of its post-closing obligations hereunder) on the date which is six (6) months after the Closing Date, which date shall hold be TIME IS OF THE ESSENCE, subject in each case to the Escrow Amount Hold Back delivery requirements described in escrow in accordance with Section 2.1(d)(ii) 13.3 below.
(c) Prior to delivering (i) the Escrow Fund to Seller (except upon default of Purchaser or at or after the Closing); or (ii) The the Escrow Fund to Purchaser, pursuant to Paragraph (b) above, the Escrow Agent shall deliver to Seller and Purchaser notice of the Escrow Agent's intention to deliver the Escrow Fund (the "Release Amount"). If, within five (5) Business Days after tendering such notice, the Escrow Agent shall not have received a notice from either party instructing the Escrow Agent not to deliver the Release Amount as specified in the Escrow Agent's notice, the Escrow Agent shall deliver the Release Amount to the party so specified. If, however, the Escrow Agent receives within such five (5) business Day period written instructions from either party that the Escrow Agent should not so deliver the Release Amount, the Escrow Agent shall continue to hold the Escrow Release Amount in escrow in accordance with and (subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case Agent's right to commence an action by way of the termination of this Agreement in accordance with Section 6.17interpleader, in which casecase the Release Amount shall be delivered to the Clerk of the Supreme Court of the State of New York, if New York County) until it receives a notice executed by Seller and Purchaser and delivery of a copy of any final judicial order or non-judicial decision to the Escrow Agent then holds any portion of the Escrow AmountAgent, then: (1) in the event of a termination by the Company, whereupon the Escrow Agent shall return disburse the portion Release Amount as provided in such joint instructions, order or decision. Seller and Purchaser hereby agree to submit themselves to the jurisdiction of the courts of the State of New York sitting in the County of New York and service upon them may be effected by the Escrow Agent in any way provided by statute.
(d) 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 Purchaser or Seller to comply with its obligations hereunder, then Escrow Agent shall pay the Escrow Fund as required by the terms of this Agreement; provided, however, that notwithstanding the foregoing, Escrow Agent shall not pay over the Escrow Fund to any party hereunder unless and until the following procedure is complied with: The party requesting disbursement of the Escrow Amount received from each Purchaser which it then holdsFund (the "Requesting Party") shall deliver notice to Escrow Agent and all other parties hereto. Within three (3) days after receipt of such notice of request, to each such Purchaser, and in the event of a termination by a Purchaser, the Escrow Agent shall return deliver notice to all other parties hereto stating that the portion Requesting Party has requested such disbursement (and including a copy of the Requesting Party's notice). Within five (5) business days after receipt of Escrow Amount received from Agent's notice, the non-requesting party shall either: (a) agree to permit such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the disbursement by Escrow Agent has or (b) inform Escrow Agent in writing that the non-requesting party does not received written wire transfer instructions from any Purchaser before agree to permit such disbursement. If the 30th day after such termination datenon-requesting party acts under clause (a), 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 fundsmake the disbursement as requested by the Requesting Party. If the non-requesting party acts under clause (b), 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 then Escrow Agent shall release not make any disbursement except as provided in Section 13.1(c) above. If the Escrow Amount constituting non-requesting party fails to respond during the aggregate purchase price as follows: foregoing five (15) to the Placement Agentbusiness day period, 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 same shall be deemed to be the response of the non-requesting party under clause (a) on the last day of such five (5) business day period.
13.2 Any delivery of any portion of the Hold Back Amount shall be made strictly in accordance with Section 13.3 as if the Hold Back Amount were the Escrow Fund. Any party who wrongfully objects to such delivery shall indemnify the party entitled to such delivery for all actual and consequential damages arising from the delay or absence of such delivery, including attorneys' fees in establishing such entitlement and any other rights hereunder.
13.3 In the event that on or before 180 days after Closing (the "Surviving Obligations Out Date"), with "TIME BEING OF THE ESSENCE AS TO SUCH DATE", Purchaser determines that it has a third party beneficiary of this Section 2.1(d)claim against Seller under Seller's surviving obligations, which claim(s) as follows:
(A) The exceeds $250,000 in the aggregate for all such claims, then Purchaser shall deliver notice thereof to Seller and to Escrow Agent: , which notice shall set forth the reason why Purchaser believes that it has a claim against Seller in excess of $250,000 and the amount requested to be disbursed by Escrow Agent from the Hold Back Amount with respect to Seller. Within five (5) business days after receipt of such notice, Escrow Agent shall deliver notice to Seller (with a copy to Purchaser) stating that Purchaser has made a claim on the Hold Back Amount (and including a copy of Purchaser's notice of claim). Within ten (10) business days after receipt of Escrow Agent's notice, Seller shall either (i) is not responsible for the performance agree to permit such disbursement by the CompanyEscrow Agent, 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 inform Escrow Agent in and Purchaser that Seller does not agree to permit such disbursement. If Seller acts under clause (A) and (B) is ministerial in naturei), and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the then Escrow Agent shall make the disbursement as requested by Purchaser. If Seller acts under clause (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 instructionii), 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 then Escrow Agent shall not make any disbursement except if pursuant to (a) subsequent joint written instructions of Seller and Purchaser or (b) pursuant to court order. If Seller fails to respond during the foregoing ten (10) day period, same shall be liable to anyone for any action taken or omitted deemed to be taken the response of Seller under clause (i) on the last day of such ten (10) day period. In the event that no claim is made by it hereunder, except Purchaser against Seller on or before the Surviving Obligations Out Date or if the amount of the claim(s) made by Purchaser on or before the Surviving Obligations Out Date is less than $250,000 in the case aggregate, then and in either event, Escrow Agent shall automatically and without further notice, release the Hold Back Amount (or the remaining Hold Back Amount to the extent there has been a prior release of a portion of the Hold Back Amount) to Seller without the necessity of complying with the foregoing procedure which compliance is waived by Purchaser. In the event a claim is timely made by Purchaser for an amount greater than $250,000 but less than the Hold Back Amount, then Escrow Agent’s gross negligence or willful misconduct , on the first day after the Surviving Obligations Out Date, shall automatically and without further notice, release the Hold Back Amount in breach excess of the amount claimed by Purchaser, to Seller.
(a) Seller and Purchaser shall jointly and severally indemnify and hold 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 for all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur including legal fees, and charges and other liabilities incurred 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 Dutiesthis Agreement, except to the extent that such action, claim expenses or proceeding is exclusively the liabilities result of the willful misconduct, bad faith or gross negligence of From the Escrow Agent's misconduct. The provisions of this paragraph (a) shall survive the delivery of the Conveyancing Instruments at the Closing or the termination of this Agreement.
(Db) The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 have the right at any time to may 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 upon ten (10) calendar days days' prior notice to each of Seller and Purchaser and (i) depositing the specified Escrow Fund with the Clerk of the County of New York, New York or (ii) transferring the Escrow Fund to a bank or other institution acceptable to Seller and Purchaser which shall have assumed in writing the obligations of the Escrow Agent pursuant to this Agreement. Upon the 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentobligations arising hereunder.
(Fc) In the event that the The Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or is hereby released from liability for any portion thereunder which, in its sole discretion, are in conflict either with other instructions received act performed by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right omitted to suspend all further be performed in its performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty hereunder other than gross negligence or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwisewillful misconduct. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the The Escrow Agent shall not be required to determine inquire into the proper resolution authority of such controversy any person purporting to give a notice on behalf of Seller or Purchaser and may assume that all signatures are genuine. It is understood and agreed that the proper disposition persons and firms referred to in Section 17 as counsel for each of Seller and Purchaser are authorized to give notices to the Escrow Agent pursuant to this Section 13.
(d) Seller and Purchaser acknowledge that the Escrow Agent is acting solely as a stakeholder hereunder and not the agent of either party in connection with its obligations hereunder. The escrow created hereunder and the obligations of the Escrow AmountAgent as an escrow agent hereunder are for the benefit of the parties to this Agreement only, and no other person shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by any rights hereunder nor shall the Escrow Agent and file have any obligations or duties to any other person other than a suit in interpleader in that court and obtain an order from that court requiring all parties involved party to litigate in that court their respective claims this Agreement by reason or arising out of or in connection with the Escrow Amount. Upon the deposit by the this Section 13.
13.5 The Escrow Agent is executing this Agreement solely for the purpose of agreeing to the Escrow Amount with the clerk of such court in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations terms and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) 13.
13.6 The Escrow Agent shall survive any termination be a beneficiary of the terms and provisions of this AgreementSection13; and shall be obligated to comply with any court order.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Reckson Operating Partnership Lp)
Escrow. (i) Simultaneously with At the execution and delivery of this Agreement by a PurchaserEffective Time, such Purchaser Parent shall promptly deliver, or cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid delivered, on behalf of the Company Securityholders, an aggregate amount equal to a non-interest bearing escrow account ten percent (10%) of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC the Merger Consideration (the “Escrow Amount”), which amount would otherwise have been deliverable to the Company Securityholders pursuant to Section 2.1(a), to Wachovia Bank N.A. (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the ), as Escrow Agent are referred under an Escrow Agreement to herein as be entered into on the “Escrow Amount”). The Escrow Agent shall hold Closing Date by and among Parent, the Escrow Amount in escrow in accordance with Section 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 AgreementRepresentative, from the date of its receipt on behalf of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 PurchaserCompany Securityholders, and the Escrow Agent shall thereafter have no further liability in the form attached hereto as Exhibit B (the “Escrow Agreement”), for deposit into an account (the “Escrow Account”) established pursuant to the Escrow Agreement. The Escrow Amount, together with all interest and earnings thereon while held in escrow under the Escrow Agreement, are referred to collectively in this Agreement as the “Escrow Funds.” The Escrow Agreement provides Parent with recourse against the Escrow Funds with respect to such deposited fundsthe Company Securityholders’ indemnification obligations under Section 12, subject to the terms and conditions set forth therein. The Escrow Funds (or (yany portion thereof) continue shall be distributed to hold such portion the Representative, on behalf 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) Company Securityholders, and Parent at the times, and upon the terms and conditions set forth in the case Escrow Agreement. Subject to Section 13.5, the Representative will promptly distribute any and all Escrow Funds received by the Representative, on behalf of the ClosingCompany Securityholders, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent to the Company Securityholders in accordance with each Company Securityholder’s Pro Rata Share (as defined below) of such distribution. Each Company Securityholder’s “Pro Rata Share” shall release be a fraction identified on a schedule or exhibit to the Escrow Amount constituting Agreement, which shall represent the percentage of the aggregate purchase price as follows: (1) to the Placement Agent, the fees Merger Consideration payable hereunder that is payable to such Placement Agent (which fees Company Securityholder; provided, however, any holder of Dissenting Shares 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 not be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible Company Securityholder 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 purposes 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 addressdetermination.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Mykrolis Corp)
Escrow. (i) Simultaneously with At the execution Closing, Parent, Seller Representative, on behalf of the Sellers, and delivery of this Escrow Agent shall enter into an Escrow 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 AgentAgreement”) set forth on ), substantially in the form of Exhibit G attached hereto 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 (the aggregate such amounts received being held in escrow by the Escrow Agent are referred pursuant to herein as the Escrow Agreement, the “Working Capital Escrow AmountFund”, the “Indemnity Escrow Fund”, the “Generator Escrow Fund” and the “Severance Escrow Fund” respectively). The Escrow Agent shall hold Pursuant to the terms of the Escrow Amount Agreement, (w) all funds remaining in escrow the Working Capital Escrow Fund, including all undistributed earnings thereon, shall be released to the Payment Agent for distribution to the Sellers in accordance with Section 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, from the date of its receipt 2.11 upon resolution of the funds constituting the Escrow Adjustment Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.172.10, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1x) all funds remaining in the event Indemnity Escrow Fund, including all undistributed earnings thereon but net of a termination by reserves for pending claims, will be released to the Company, Payment Agent for distribution to the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, Sellers in accordance with written wire transfer instructions received from Section 2.11 twelve (12) months following the PurchaserClosing Date; and (2) if as each pending claim is resolved, 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 excess of the Escrow Amount corresponding reserve (together with any undistributed earnings thereon) over the amount allowed will be released to be returned the Payment Agent for distribution to such Purchaser the Sellers in a court of competent jurisdiction on written notice to such Purchaseraccordance with Section 2.11, 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) all funds remaining in the case of the ClosingGenerator Escrow Fund, receipt of written instructions from the Company and the Placement Agent that the Closing including all undistributed earnings thereon, shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) be released to the Placement Agent, the fees payable to such Placement Payment Agent (which fees shall be set forth in such instructions), and (2) the balance of the aggregate purchase price for distribution 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 Sellers in accordance with Section 2.11 twelve (12) months following the written instructions from the Company and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (A) Closing Date and (Bz) is ministerial all funds remaining in naturethe Severance Escrow Fund, and no implied duties or obligations of any kind including all undistributed earnings thereon, shall be read into this Agreement against or on released to the part of Payment Agent for distribution to 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 Sellers in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A2.11 six (6) 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, 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 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 months 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 Company and the Placement Agent in form and formality satisfactory to the Escrow AgentClosing Date.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (CyrusOne Inc.)
Escrow. (ia) Simultaneously with To provide for the execution indemnity obligations set forth in Article VII, the Escrow Shares shall be deposited in escrow (the “Escrow”). The Escrow Shares shall be subject to the terms and delivery of this conditions provided herein and the Escrow 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 entered into at the Closing between Parent, Key, F. D▇▇▇ ▇▇▇▇▇ Irrevocable Trust under Agreement dated August 31, 2004 (the “C▇▇▇▇ Trust”), D▇▇▇▇ ▇▇▇▇▇▇▇ PC and Continental Stock Transfer and Trust Company (“Continental”) (or another escrow agent acceptable to the parties), as Escrow Agent, in substantially the form annexed hereto as Exhibit E (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 AmountAgreement”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(iib) The On the date that is twelve (12) months and one day subsequent to the Closing Date, only 2,500,000 Escrow Agent Shares, shall continue to hold be retained in Escrow and the excess Escrow Shares shall be released from the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 deliver such deposited funds, or (y) continue to hold such portion of the excess 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) Shares to the Placement AgentMembers, 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 pro rata among them in accordance with the written instructions from the Company and the Placement Agent, each distribution of the responsibilities Cay Merger Consideration as set forth on Schedule 1.6(a). On the date that is eighteen (18) months subsequent to the Closing Date, pursuant to Article VII, the indemnity obligations of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind Members 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, is merely acting as a stakeholder terminate 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, shares remaining in the Escrow Amount or any other matter. The Purchasers hereby expressly consents to permit Account shall be released from 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 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 Shares to the successor escrow agentMembers, 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a). Any Escrow Shares that are deposited in Escrow and are used to satisfy an indemnification obligation pursuant to Article VII shall be removed from the Escrow, shall cease to be Escrowed Shares and shall be returned to Key, at such time such shares shall be retired by Key. Notwithstanding anything set forth in this provisionSection 1.13(d), the indemnification provisions of Article VII, and specifically Section 7.4, and the Escrow Agent Agreement shall thereupon be relieved control any releases of all further Escrow Shares from Escrow to satisfy the Article VII indemnification obligations and released from all liability hereunderthe general operation and maintenance of such account.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Key Hospitality Acquisition CORP)
Escrow. 20.1 If this Agreement is executed prior to the Closing Date, Escrow Agent shall hold the Downpayment and all interest accrued thereon, if any (collectively, the "Fund") in escrow and shall dispose of the Fund only in accordance with the provisions of this Section 20.
20.2 Escrow Agent shall deliver the Fund to Sellers or Purchaser, as the case may be, as follows:
(a) to Sellers, upon completion of the Closing; or
(b) to Sellers, after receipt of Sellers' demand in which Sellers certifies either that (i) Simultaneously Purchaser has defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Sellers is thereby entitled to receive the Fund; but Escrow Agent shall not honor Sellers' demand until more than ten (10) days after Escrow Agent has given a copy of Sellers' demand to Purchaser in accordance with Section 20.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or
(c) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (i) Sellers have 43 defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Purchaser is thereby entitled to receive the execution and Fund; but Escrow Agent shall not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Sellers in accordance with Section 20.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Sellers within such ten (10) day period. Upon delivery of this Agreement the Fund, Escrow Agent shall be relieved of all liability hereunder and with respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the party entitled to receive the same, by (i) a Purchasergood, unendorsed certified check of Escrow Agent payable to the order of such Purchaser shall promptly cause party, (ii) an unendorsed official bank or cashier's check payable to the order of such party, or (iii) a bank wire transfer of immediately available funds to an account designated by such party.
(U.S. dollarsa) in an amount representing such Purchaser’s Subscription Amount to be paid to Upon receipt of a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC written demand from Sellers or Purchaser under Section 20.2(b) or (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”c). The , Escrow Agent shall hold send a copy of such demand to the other party. Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Fund to the party making such demand by giving a notice of objection (a "Notice of Objection") to Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Agent. After receiving a Notice of Objection, Escrow Agent shall continue send a copy of such Notice of Objection to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from party who made the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Purchaserdemand; 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 maythereafter, in its sole and absolute discretion, Escrow Agent may elect either (xi) deposit that portion to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Sellers directing the disbursement of the Escrow Amount to be returned to such Purchaser Fund, in a court of competent jurisdiction on written notice to such Purchaser, and the which event Escrow Agent shall thereafter have no further liability disburse the Fund in accordance 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 jurisdictionagreement; 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; and/or (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 and all actions as Escrow Agent deems necessary 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 itdesirable, in its sole and absolute discretion; (iv) may rely on , to discharge 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, is merely acting as a stakeholder terminate its duties 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 depositing the Fund into 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 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 and bringing any action of interpleader or any other proceeding; and/or (iii) in the Escrow Agent event of any litigation between Sellers and give written notice thereof Purchaser, to deposit the Company, Fund with the Placement Agent and clerk of the Purchasers, or (B) continue to hold the Escrow Amount court in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agentwhich such litigation is pending.
(Fb) In the event that the If Escrow Agent shall be is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Section 20.2(b) or (c), or Notice of Objection under Section 20.3(a)), notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 20.3(a)(i), (ii) or (iii) and may decline to take any other action whatsoever. In the event the Fund is deposited in a court by Escrow Agent pursuant to Section 20.3(a)(ii) or (iii), Escrow Agent shall receive instructions be entitled to rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to disposition of the Fund, (i) Purchaser and Sellers shall pay the attorney's fees and costs incurred by Escrow Amount Agent (which said parties shall share equally, but for which said parties shall be 44 jointly and severally liable) for any litigation in which Escrow Agent is named as, or any portion thereunder whichbecomes, a party and (ii) as between Purchaser and Sellers, the non-prevailing party shall pay the reasonable attorneys' fees and costs of the prevailing party.
20.4 Notwithstanding anything to the contrary in its sole discretionthis Agreement, are in conflict either with other instructions received by it or with any provision within one (1) business day after the date of this Agreement, the Escrow Agent shall have place the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of Downpayment in an Approved Investment. The interest, if any, which accrues on 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, joint written instructions from the Company, the Placement Agent and all Approved Investment shall be deemed part of the Purchasers, or otherwise. In the event that any controversy arises between the Company Fund; and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution dispose of such controversy or the proper disposition of the Escrow Amount, interest as and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Fund pursuant to this Agreement. Escrow Agent 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 may not commingle the Fund with the any other funds held by Escrow AmountAgent. Upon the deposit by the Escrow Agent may convert the Fund from the Approved Investment into cash or a non-interest-bearing demand account at an Approved Institution as follows:
(a) at any time within seven (7) days prior to the Closing Date; or
(b) if the Closing Date is accelerated or extended, at any time within seven (7) days prior to the accelerated or extended Closing Date (provided, however, that Sellers and Purchaser shall give Escrow Agent timely notice of any such acceleration or extension and that Escrow Agent may hold the Fund in cash or a non-interest-bearing deposit account if Sellers and Purchaser do not give Escrow Amount with the clerk Agent timely notice of any such court in accordance with this provisionadjournment).
20.5 As used herein, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
term "Approved Investment" means (Ga) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.interest-bearing demand account or money market fund in Citibank, N.
Appears in 1 contract
Escrow. (a) At the Closing: (x) Parent shall deposit with the Escrow Agent (i) Simultaneously the Adjustment Escrow Amount on behalf of the Company Indemnitors for the purpose of partially securing the obligations of the Company Indemnitors to Parent regarding a Post-Closing Deficit Amount under Section 2.9, (ii) the Indemnity Escrow Shares and the Indemnity Escrow Cash on behalf of the Company Indemnitors for the purpose of partially securing the obligations of the Company Indemnitors under Section 2.9 and Article VIII during the period through the fifteen (15) month anniversary of the Closing Date (it being agreed that with respect to any holder of Unvested Company Shares, the execution amounts deposited on such Person’s behalf will be cash and delivery shares of this Agreement by Parent Common Stock, as applicable, that are not subject to any further vesting requirements and then only if and to the extent there is a Purchasershortfall, Vesting Consideration will be deposited on such Purchaser Person’s behalf); and (y) the Company 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 deposit with the Escrow Agent are referred to herein as on behalf of the “Company Indemnitors the Other Indemnity Escrow Amount”)Amount into the Other Indemnity Escrow Fund for the purpose of partially securing certain obligations of the Company Indemnitors under Section 2.11(g) and Article VIII. The Adjustment Escrow Agent Fund shall hold become payable to the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which caseCompany Indemnitors, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Purchaserat all, in accordance with written wire transfer instructions received each Company Indemnitor’s respective Pro Rata Share, subject to the terms and conditions of this Agreement (including Section 2.9). The Indemnity Escrow Shares and the Indemnity Escrow Cash shall become issuable or payable, as applicable, to the Company Indemnitors, if at all, in accordance with each Company Indemnitor’s respective Pro Rata Share in the same proportion as cash and shares (if any) otherwise payable to such Company Indemnitor (and, with respect to the Key Employees, excluding the shares subject to revesting pursuant to the Joinder Agreements)), subject to the terms and conditions of this Agreement (including Section 2.9 and Article VIII). The Other Indemnity Escrow Cash shall become issuable or payable, as applicable, to the Company Indemnitors, if at all, in accordance with each Company Indemnitor’s respective Pro Rata Share in cash, subject to the terms and conditions of this Agreement (including Article VIII). The parties hereto agree that, for Tax purposes only, Parent shall be treated as the owner of the Adjustment Escrow Fund, Indemnity Escrow Cash and Other Indemnity Escrow Cash and all interest on or other taxable income, if any, earned from the Purchaserinvestment of the Adjustment Escrow Fund, Indemnity Escrow Cash and Other Indemnity Escrow Cash pursuant to the Escrow Agreement shall be treated for Tax purposes as earned by Parent. Within ten (10) days after the final distribution of the Escrow Cash to the Company Indemnitors, Parent shall be entitled to a distribution equal to twenty eight percent (28%) of the excess of (x) all interest and earnings from the investment and reinvestment of the Escrow Cash prior to the final distribution of the Escrow Cash, over (y) the deduction available to Parent on distribution of the Escrow Cash under Section 483 of the Code (and any comparable provision of state or local Tax law), as applicable; provided that such rate shall be adjusted to reflect any subsequent change in the combined effective U.S. federal and state income tax rate applicable to corporate income of Parent. The parties hereto agree that, for federal and applicable state income tax purposes, the Company Indemnitors shall be treated as the owner of the Indemnity Escrow Shares.
(b) The approval and adoption of this Agreement and approval of the Merger by the Company Indemnitors, and the delivery of the Joinder Agreements, Option Surrender Agreements, RSU Surrender Agreements and Warrant Cancellation Agreements by the Company Indemnitors, constitutes approval by such Company Indemnitors, as specific terms of the Merger, and the irrevocable agreement of such Company Indemnitors to be bound by and comply with, this Agreement and all of the arrangements and provisions of this Agreement relating to the matters set forth in this Section 2.4, including Parent’s deposit of the Adjustment Escrow Fund, the Indemnity Escrow Shares, the Indemnity Escrow Cash and the Other Indemnity Escrow Cash with the Escrow Agent.
(c) For purposes of determining the number of Indemnity Escrow Shares required to satisfy any Post-Closing Deficit Amount under Section 2.9(d), to satisfy any Losses under Article VIII or to calculate the Retained Escrow Amount (if any), each Indemnity Escrow Share shall be deemed to have a value equal to the Parent Stock Price (and the parties hereto acknowledge that the Parent Stock Price only reflects an agreed-upon amount as to the value of a share of Parent Common Stock for the limited purpose of this sentence and is not intended to be, nor is it, deemed to constitute the fair market value of a share of Parent Common Stock at any given time).
(d) While any Indemnity Escrow Shares are held in escrow, each Company Indemnitor shall have the ability to exercise all rights with respect to the Company Indemnitor’s allocable portion of the Indemnity Escrow Shares, including voting rights, except (i) the right of possession thereof, and (2ii) if the right to pledge, encumber, sell, assign or transfer such Indemnity Escrow Shares or any interest therein except as contemplated herein and in the Joinder Agreements. The Stockholder Representative (on behalf of the Company Indemnitors) shall direct the Escrow Agent has not received written wire transfer instructions from in writing as to the exercise of 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 Purchaservoting rights, and the Escrow Agent shall thereafter have no further liability with respect to such deposited fundscomply, 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 it is able to do so, with any such action, claim or proceeding is exclusively the result directions 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwiseStockholder Representative. In the event that any controversy arises between the Company and one or more absence of the Purchasers or any other party with respect to this Agreement or the Escrow Amountsuch directions, the Escrow Agent shall not vote any of the shares comprising the Indemnity Escrow Shares. The Parties agree that, for tax reporting purposes, the Company Indemnitors shall be treated as having received the Indemnity Escrow Shares and voluntarily set them aside in the escrow account at the time of Closing and the Indemnity Escrow Shares shall be treated as issued and outstanding by Parent. In furtherance of the foregoing, the Company Indemnitors shall, be entitled to vote the Indemnity Shares and to receive any dividends in respect of the Indemnity Escrow Shares, and no tax reporting shall be required to determine the proper resolution of such controversy or the proper disposition in respect of the release of all or a portion of the Indemnity Escrow Amount, and Shares to the Company Indemnitors. All dividends paid to holders of the capital stock of Parent in respect of the Indemnity Escrow Shares shall have the absolute right, not be deposited in its sole discretion, to deposit the Escrow Amount with Account but instead shall be delivered to the clerk of a court selected by Paying Agent for prompt distribution to the Escrow Agent 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 appropriate Company Indemnitors based on the Escrow Amount. Upon the deposit by the Escrow Agent Company Indemnitor’s allocable portion of the Indemnity Escrow Amount Shares. The Company Indemnitors shall be responsible for paying taxes on all taxable dividends earned on the Indemnity Escrow Shares and for filing all necessary tax returns with the clerk of respect to such court in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderincome.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously Upon the issuance of the Non-Escrow Shares in accordance with Section 1.4, the execution and delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer withhold the Initial Escrow Shares and deliver such shares of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount Purchaser Common Stock to be paid to a non-interest bearing Wilmington Trust N.A., as escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC agent (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being ), to be held in escrow by the Escrow Agent are referred as collateral to herein as secure the rights of the Purchaser pursuant to Section 1.3(a) and of the Purchaser Indemnified Parties under Article IX. The Escrow Shares shall be held pursuant to the provisions of an escrow agreement substantially in the form of Exhibit C hereto (the “Escrow AmountAgreement”). The Escrow Agent shall hold Shares will be held by the Escrow Amount Agent until the date that is 12 months after the Closing Date (the “Escrow Period”); provided, however, that in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue the event any Purchaser Indemnified Party has made a claim under Article IX prior to hold the end of the Escrow Amount in escrow Period, then, in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion terms and conditions of the Escrow Amount, then: (1) in the event of a termination by the CompanyAgreement, the Escrow Agent Period shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 continue (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) will continue to hold such portion number of Escrow Shares in escrow as is equal to the quotient obtained by dividing: (a) any claimed amounts by (b) the Per Share Price, rounded up to the nearest whole share) until such claim is fully and finally resolved. By virtue of the Escrow Amount pending receipt execution of written wire transfer instructions from this Agreement by a Member, without any further act of any Member, 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 Member shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: have consented to and approved (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any use of the Transaction Documents or for determining or compelling compliance therewith; Escrow Shares as collateral to secure the rights of the Purchaser pursuant to Section 1.3(a) in the manner set forth herein and in the Escrow Agreement, (ii) is only responsible for (A) holding the use of the Escrow Amount Shares as collateral to secure the rights of the Purchaser Indemnified Parties under Article IX in escrow pending receipt the manner set forth herein and in the Escrow Agreement, and (iii) the appointment of written instructions from the Company Members’ Representative as the representative under the Escrow Agreement of the Members under this Agreement and as the Placement Agent directing attorney-in-fact and agent for and on behalf of such Member.
(b) Upon the release of Escrow Shares by the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Placement Agent, the Purchaser shall promptly deliver, or cause to be delivered, to the Members’ Representative (for distribution to the Members) stock certificates representing the Initial Escrow Shares or the Sorrento Escrow Shares, as applicable, in the name of each Member, in each case for such number of shares of Sorrento Common Stock or Purchaser Common Stock, as applicable, as is equal to the product of the responsibilities total number of the Initial Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties Shares or obligations of any kind shall be read into this Agreement against or on the part of the Sorrento 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 Shares being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated released 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 pursuant 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 Agreement multiplied by 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 percentage of Membership Interests owned by reason such Member as 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, 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 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 immediately 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 Company and the Placement Agent in form and formality satisfactory to the Escrow AgentClosing.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Sorrento Therapeutics, Inc.)
Escrow. (ia) Simultaneously Tellabs and Occam shall enter into an escrow agreement substantially in the form of Exhibit G with the execution and delivery applicable escrow agent within ninety (90) days following the Effective Date. Tellabs shall bear the expense of such third party escrow arrangement.
(b) The Escrow Materials for each BLC Product shall initially be delivered to the escrow agent in accordance with the terms of the escrow agreement following the first shipment of the generally available release of each such BLC Product by Tellabs. Thereafter, Occam will make, in accordance with the terms of the Escrow Agreement, an annual deposit of updated Escrow Materials with respect to the BLC Products then being manufactured by Tellabs. In addition, if a Release Condition occurs, Occam will provide Tellabs with then-current versions of the Escrow Materials for each BLC Product.
(c) The Escrow Materials will be released by the escrow agent to Tellabs in accordance with the terms of the escrow agreement if the Release Condition occurs.
(d) Subject to the terms of this Agreement by a Purchaserand the escrow agreement, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount Occam hereby grants to be paid to Tellabs a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC exclusive, royalty-free, non-assignable (the “Escrow Agent”) except as set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Section 16.3), non-transferable, non-sublicenseable license to receive all Escrow Agent are referred Materials released to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow Tellabs in accordance with Section 2.1(d)(ii2.9(c) below.
(ii) The Escrow Agent shall continue to hold and the terms of the Escrow Amount in escrow in accordance with Agreement and subject to this Agreement, from use such Escrow Materials during the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination term of this Agreement solely to correct the design defects that are the subject of the Release Condition. Once Tellabs corrects the design defects, this license will expire and Tellabs must promptly destroy the Escrow Materials. Tellabs must not use the Escrow Materials for any other purpose. Tellabs must protect the Escrow Materials as Occam’s Confidential Information in accordance with Section 6.17, in which case, if 14. Occam must not disclose the Escrow Agent then holds any portion of Materials to a third party. *** Confidential treatment requested pursuant to a request for confidential treatment filed with the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, Securities and 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 Exchange Commission. Omitted portions 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 filed separately 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 addressCommission.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Manufacturing License Agreement (Occam Networks Inc/De)
Escrow. (a) At the Effective Time, Parent shall deposit (i) Simultaneously the Indemnification Escrow Amount with the execution and delivery of this Agreement by a PurchaserU.S. Bank, 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 National Association (the “Escrow Agent”) set forth on Exhibit G 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 Funds shall be governed by the terms of an escrow agreement to be entered into by and among Parent, the Securityholders’ Representative and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit H (the aggregate amounts received being “Escrow Agreement”). Subject to Section 10.6, the Indemnification Escrow Funds shall be held in escrow by the Escrow Agent are referred to herein as until the date that is twelve (12) months following the Closing Date (the “Indemnification Escrow AmountExpiration Date”), 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 Funds 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, 3.2 and 10.6(c) and the Escrow Agreement. The Purchase Price Adjustment Escrow Funds shall be held in escrow by the Escrow Agent shall hold the Escrow Amount in escrow until released in accordance with Section 2.1(d)(ii3.5(e) belowand the Escrow Agreement.
(iib) The Escrow Agent shall continue All parties hereto agree for all Tax purposes that (i) the right of the holders of Company Shares to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt shall be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the funds constituting Code and any corresponding provision of foreign, state or local law, as appropriate and (ii) Parent shall be treated as the owner of the Escrow Amount until solely for Tax purposes, and all interest and earnings earned from the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion investment and reinvestment of the Escrow Amount, then: (1or any portion thereof, shall be allocable to Parent pursuant to Section 468B(g) in of the event of a termination by the Company, the Escrow Agent shall return the Code and Proposed Treasury Regulations Section 1.468B-8. Any portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 proceeds payable with respect to such deposited funds, or (y) continue to hold such portion of any In the Money Vested Option that is not a Non-Withholding Option and held in the Escrow Amount pending receipt of written wire transfer instructions from Funds will be subject to withholding for income and employment Taxes at such Purchaser or an order from a court of competent jurisdiction; OR
(B) in time as 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) amounts are paid to the Placement Agent, holder of such In the fees payable to such Placement Agent (which fees Money Vested Options. All parties hereto 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 file all Tax Returns consistent 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 addressforegoing.
(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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Hub Group, Inc.)
Escrow. (i) Simultaneously [DN number given as example. Insert as next available Clause number] The SERVICE PROVIDER shall place the source code of such software as agreed with the execution CUSTOMER in escrow with a reputable escrow agent satisfactory to the CUSTOMER [specify escrow agent] in a location in the UK satisfactory to the CUSTOMER within one Month of acceptance by the CUSTOMER on the basis of such terms generally accepted in the industry as the CUSTOMER, the SERVICE PROVIDER and delivery the escrow agent shall agree and in default of agreement as shall be determined for them, upon the application of one of the parties, by the President (for the time being) of the British Computer Society, whose judgement shall be final and binding. The SERVICE PROVIDER shall ensure that the software placed in escrow shall include material modifications, developments, updates, patches, enhancements or other modifications to the software from time to time and shall include all necessary password and encryption details to access the source code along with all necessary instructions for use and maintenance of the same and, if requested, names and contact details of the SERVICE PROVIDER’s employees experienced in maintaining the source code. The SERVICE PROVIDER hereby grants the CUSTOMER a perpetual, non-transferable and non-exclusive licence to use and reproduce (and to authorise a third party to use and reproduce) the source code version of the software placed in escrow. The CUSTOMER shall be able to exercise this Agreement by right upon demand to the escrow agent. However, the licence shall be subject to any restrictions contained therein in respect of the object code version of the software provided that such restrictions shall not detract from the rights granted under this Clause 60. The SERVICE PROVIDER hereby grants the CUSTOMER a Purchaserperpetual, non-transferable and non-exclusive licence to modify, adapt and enhance (and to authorise a third party to modify, adapt and enhance) the source code version of the software placed in escrow. However, this licence shall only become effective if the CUSTOMER becomes entitled to obtain access to the source code version of that software pursuant to the escrow arrangement referred to in Clause Error: Reference source not found and the licence shall be subject to any restrictions contained therein in respect of the object code version of the software provided that such Purchaser restrictions shall promptly cause a wire transfer of immediately available funds (U.S. dollars) not detract from the rights granted under this Clause 60. The SERVICE PROVIDER and the CUSTOMER hereby agree that both parties shall each pay their respective fees set out in an amount representing such Purchaser’s Subscription Amount any escrow agreement entered into pursuant to Clause Error: Reference source not found. The CUSTOMER shall be entitled to require the escrow agent to audit the source code and if it does so then the licence granted in Clause 60.3 shall apply to the escrow agent, things being changed that need 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”)changed. The Escrow Agent SERVICE PROVIDER shall hold the Escrow Amount in escrow in accordance with Section 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, secure an assurance from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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) escrow agent that in the event of a termination by it transfers or assigns the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 agreement it shall have been furnished with indemnification acceptable only do so 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, 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 matterreputable escrow agent. 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.SERVICE PROVIDER undertakes:
Appears in 1 contract
Sources: Telecommunications
Escrow. (a) At the Closing, (i) Simultaneously with the 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 deposit an amount representing such Purchaser’s Subscription Amount in cash equal to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC $2,718,750 (the “Indemnity Escrow AgentAmount”) set forth on Exhibit G attached hereto with the Escrow Agent in accordance with Section 2.7 (the aggregate amounts received being Transactions to Be Effected at Closing) to be held in an escrow account by the Escrow Agent are referred for the purpose of securing indemnification obligations of the Seller set forth in Article IX (the “Indemnity Escrow Account”) and (ii) the Purchaser shall deposit an amount in cash equal to herein as $8,000,000 (the “Adjustment Escrow Amount” and, together with the Indemnity Escrow Amount, the “Escrow AmountAmounts”) 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 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 the Indemnity Escrow Account, the “Escrow Accounts”). The Escrow Agent Escrowed Cash shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if be held by the Escrow Agent then holds any portion pursuant to the terms of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Agreement. The Escrowed Cash shall be set forth in such instructions), held as a trust fund 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 subject to take any legal lien, attachment, trustee process or any other action hereunder which might in its judgment involve or cause it to incur judicial process of any expense or liability unless it shall have been furnished with indemnification acceptable to itcreditor of any party, 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 held and believed by it to be genuine and to have been signed or presented by disbursed solely for 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 purposes and in accordance with the opinion or advice terms of such counsel. Documents this Agreement and written materials referred to the Escrow Agreement.
(b) Except as otherwise provided in this Agreement and the Escrow Agreement, (i) on the date that is twelve (12) months after the Closing Date (the “Release Date”), all of the Escrowed Cash with respect to the Indemnity Escrow Account (other than any amounts in respect of the Indemnity Escrow Account to be distributed to the Purchaser pursuant to Section 2.1(d)(iii)(A2.4(c)) include, without limitation, e-mail shall be released to the Seller pursuant to joint written instructions delivered by the Purchaser 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 Seller to the Escrow Agent as having been signed or presented by a Person if it bears, as sender, and (ii) all of the Person’s e-mail addressEscrowed Cash with respect to the Adjustment Escrow Account (other than any amounts in respect of the Adjustment Escrow Account to be distributed to the Purchaser pursuant to Section 2.8(j)) shall be released to the Seller in accordance with Section 2.8(h).
(Bc) The Escrow Agent parties hereto agree that, for Tax reporting purposes, the Seller shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in treated as the case of Escrow Agent’s gross negligence or willful misconduct in breach owner of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECTEscrowed Cash, PUNITIVEand that all interest on or other taxable income, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVERif any, 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 earned from 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 investment of the Escrow Agent Duties, except Escrowed Cash pursuant to this Agreement shall be treated for Tax purposes as earned by the extent such action, claim or proceeding Seller until the Escrowed Cash 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 distributed in connection accordance with this Agreement and the Escrow Agreement. The parties hereto agree that any and all interest, gains and other Transaction Documents, is merely acting as a stakeholder under this Agreement distributions and is, therefore, hereby authorized to continue acting as legal counsel income earned on the Escrow Accounts shall be solely for the account of the Seller (and all such amounts shall be distributed to the Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, Seller from the Escrow Amount or any other matter. The Purchasers hereby expressly consents to permit the Escrow Agent to represent the Placement Agent Accounts 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 accordance 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderAgreement).
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously with One day following the execution and delivery of this Agreement by a Purchaseran Investor, such Purchaser Investor shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such PurchaserInvestor’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC Escrow, LLC (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 2.1(d)(ii3.3(b) below.
(iib) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(Ai) in the case of the termination of this Agreement in accordance with Section 6.176.3, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1A) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser Investor which it then holds, to each such Purchaser, and 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 PurchaserInvestor, in accordance with written wire transfer instructions received from the Purchasersuch Investor; and (2B) if the Escrow Agent has not received written wire transfer instructions from any Purchaser Investor 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 Investor in a court of competent jurisdiction on written notice to such PurchaserInvestor, 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 Investor or an order from a court of competent jurisdiction; OR
(Bii) 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: (1A) to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions)Agent, and (2B) 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mad Catz Interactive Inc)
Escrow. (i) Simultaneously with the execution and delivery Notwithstanding any provision of this Agreement by a Purchaserto the contrary, such Purchaser the Closing of the Transaction contemplated hereunder shall promptly cause a wire transfer of immediately available funds (U.S. dollars) be completed in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇escrow, with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC , Esq., acting as escrow agent (the “Escrow "ESCROW Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held "), and any funds delivered in escrow shall be held and disposed of 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 terms and provisions of a 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"). In furtherance of the 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 conditions 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 Company and the Placement Agent, each of the responsibilities of the Buyer shall provide written notice to Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations directing that the escrow be disposed 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, 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 terms of this Agreement; provided, the other Transaction Documentshowever, 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 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain as retain $50,000 of the Share Purchase Price in escrow to its duties or rights hereunder or shall receive instructions with respect satisfy any indemnification obligations of Yuan under this Agreement and any indemnification obligations of the ASAP Subsidiary and Yuan under the Indemnity Agreement ("Indemnity Escrow"). On the date six months (6) months following the Closing Date, to the extent that the Indemnity 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 has not been and is not the subject of an indemnification claim under this Agreement and the Indemnity Agreement, the Indemnity Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved be released to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdictionASAP Subsidiary together with accrued interest thereon, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderif any.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cyber Merchants Exchange Inc)
Escrow. (ia) Simultaneously with the Within six (6) business days following 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date parties shall deliver their respective closing deliveries described below into the custody of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Chase Manhattan Trust Company, the National Association as escrow agent ("Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Seller 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 share equally in the case payment 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 expenses of the Escrow Agent.
(Db) The Escrow Agent has acted as legal counsel Seller's deliveries shall include: (i) all stock certificates representing the Shares, (ii) a duly endorsed but undated stock powers substantially in the form of EXHIBITS C-1 AND C-2 attached hereto (collectively, the "Stock Power") for the transfer of the Shares to the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 Company upon any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount Put Exercise 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 matterCall Exercise, 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(iii) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 an executed copy of the Escrow Agent hereunder Agreement, substantially in the form attached hereto as EXHIBIT D ("Escrow Agreement") which 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 function in part as irrevocable 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 Company and the Placement Agent in form and formality satisfactory instructions to the Escrow Agent.
(Fc) In The Company's deliveries shall include: (i) cash or cash equivalents in the event that full amount of the Exercise Price, which shall be deposited into a separate account pending release of such funds upon any Put Exercise or Call Exercise, and (ii) an executed copy of the Escrow Agent Agreement which shall be uncertain function in part as to its duties or rights hereunder or shall receive irrevocable escrow 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 (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment .
(d) The Company and the Seller hereby agree that upon the Escrow Agent's receipt of a court of competent jurisdiction, joint written instructions from the CompanyPut Exercise Notice or a Call Exercise Notice, the Placement Agent Seller shall be deemed to have sold, transferred and all of conveyed the Purchasers, or otherwise. In the event that any controversy arises between Shares to the Company and one or more of the Purchasers or any other Company shall be deemed to have purchased the Shares with no additional actions being required by either party with respect to this Agreement or the Escrow Amountconsummate such purchase and sale, the Escrow Agent shall not except as may be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderotherwise provided herein.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Call/Put Option Agreement (California Coastal Communities Inc)
Escrow. The parties agree and acknowledge that availability of the product proprietary technology of the Seller is critical to the Buyer in the conduct of its business and therefore the Buyer needs access to the proprietary technology under certain circumstances. Buyer and Seller desire to establish an escrow account with a third party to provide for the retention, administration and controlled access of the proprietary product technology of the Seller. Buyer has previously entered into a Three-Party Master Beneficiary Escrow Service Agreement No. 34000 with Iron Mountain (ithe “Escrow Agent”) Simultaneously dated March 12, 2008 attached hereto as Attachment 2 (the “Escrow Agreement”). Seller hereby agrees to be bound by all of the provisions of the Escrow Agreement. Seller shall complete and execute the Depositor Enrollment Form attached hereto as Attachment 3 (the “Enrollment Form”) within one hundred twenty (120) days of execution of this Agreement. The product proprietary technology placed in escrow pursuant to the Escrow Agreement shall include the materials identified in Attachment 4 which will be attached to the Enrollment Form and provided to the Escrow Agent within one hundred twenty (120) days of execution of this Agreement. Buyer shall pay all fees associated with the execution Escrow Agreement, including but not limited to being the “Paying Party” for all services identified in Exhibit A of the Escrow Agreement that are requested by Buyer.” 6. Except as expressly amended above, all other terms and delivery conditions of this the Agreement as amended will continue in full force and effect without change or modification. IN WITNESS OF THIS AGREEMENT, the parties have signed below by a Purchasertheir authorized officers, such Purchaser shall promptly cause a wire transfer effective as 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 the later date below: By: /s/ ▇▇▇▇ CHATEAU By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ Chateau ▇▇▇▇▇▇ PC (the “▇. ▇▇▇▇▇ Title: V.P, Supply Line Title: President & CEO Date: 2-1-11 Date: 1/26/11 NVE and Pacesetter Confidential Attachment 2 – Iron Mountain Three-Party Master Beneficiary 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 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with Services Agreement Attachment 3 – Depositor Enrollment Form NVE and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, ePacesetter Confidential THREE-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 PARTY MASTER BENEFICIARY 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.SERVICE AGREEMENT
Appears in 1 contract
Escrow. (i) Simultaneously with the execution and delivery of this Agreement by a Purchaser, such Purchaser 13.01. The Deposit 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 in an interest bearing account until disbursed as herein provided. Any interest accrued on the Deposit shall be paid to herein as whichever party is entitled to the “Escrow Amount”)Deposit in accordance with the provisions of this Agreement. The Deposit shall be held and disbursed by Escrow Agent in the following manner:
(a) to Seller at the Closing upon consummation of the Closing; or
(b) to Seller upon receipt by Escrow Agent of written demand therefor, stating (i) that Purchaser has defaulted in the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default or (ii) that Seller is otherwise entitled to the Deposit pursuant to the terms of this Agreement; provided, however, that Escrow Agent shall hold the not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if Escrow Amount in escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of Section 2.1(d)(ii13.02; or
(c) below.
to Purchaser upon receipt of written demand therefor, stating that either (i) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination, or (ii) The Seller shall have 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 the Deposit under the provisions of this Agreement; provided, however, that Escrow Agent shall continue not honor such demand until at least ten (10) days after it has sent a copy of such demand to hold the Seller, nor thereafter if Escrow Amount in escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of Section 13.02. Notwithstanding the foregoing, if Escrow Agent receives a written demand from Purchaser for the return of the Deposit on or before the expiration of the Due Diligence Period, then Escrow Agent shall immediately send notice thereof to Seller and subject to this Agreement, comply with said demand notwithstanding any contrary instruction Escrow Agent may receive from the date of its Seller.
13.02. Upon receipt of written demand for the funds constituting the Escrow Amount until the soonest of:
Deposit by Purchaser or Seller pursuant to clause (Ab) in the case or (c) of Section 13.01 (other than a demand from Purchaser on or before expiration of the termination of this Agreement in accordance with Section 6.17Due Diligence Period, in which caseas provided above), if the Escrow Agent then holds any portion shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow AmountAgent within the greater of five (5) days or three (3) business 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, then: (1) in Escrow Agent shall promptly send a copy thereof to the party who made the written demand.
13.03. In the event of a termination by any dispute between the Companyparties regarding the Deposit, the Escrow Agent shall return disregard all instructions received and at its option either (i) hold the portion Deposit until the dispute is mutually resolved and Escrow Agent is advised of the Escrow Amount received from each Purchaser which it then holds, to each such fact in writing by both Seller and Purchaser, and in the event or Escrow Agent is otherwise instructed by a final non-appealable judgment of a termination by a Purchasercourt of competent jurisdiction, 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 or (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 (xii) deposit that portion of the Escrow Amount to be returned to such Purchaser in Deposit into a court of competent jurisdiction on written notice to such Purchaser, and the (whereupon Escrow Agent shall thereafter have no further be released and relieved of any and all liability with respect and obligations hereunder from and after the date of such deposit).
13.04. In the event Escrow Agent shall be uncertain as to such deposited fundsits duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or (y) continue to hold such portion instructions which conflict with any of the provisions of this Agreement, Escrow Amount pending receipt 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 by final judgment 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 13.05. 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 upon, and shall be protected in acting or refraining from acting upon 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 Personparty or parties, provided that any modification of this Article 13 shall be signed by Escrow Agent, Purchaser and Seller.
13.06. 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 reasonable 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 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 for any action taken, taken or suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
13.07. 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 may resign at will and be discharged from its duties or presented obligations hereunder by giving notice in writing of such resignation specifying a Person if it bearsdate when such resignation shall take effect; provided, as senderhowever, the Person’s e-mail address.
that (Bi) The 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 not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in deposit the case Deposit with a court of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Dutiescompetent jurisdiction. 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, 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 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 After 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Multifamily Reit I Inc)
Escrow. (i) Simultaneously with the execution and delivery Notwithstanding any provision of this Agreement by a Purchaserto the contrary, such Purchaser the Closing of the Transaction contemplated hereunder shall promptly cause a wire transfer of immediately available funds (U.S. dollars) be completed in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇escrow, with Michael A. Littman, Esq., acting a▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇ PC (the “e "Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held "), and shall take place at his office and any funds and all documents delivered in escrow shall be held and disposed of by the Escrow Agent are referred to herein in accordance with the terms and provisions of a certain escrow agreement by and among Seller, Buyer and Escrow Agent, in substantially the form attached hereto as Exhibit A (the “"Escrow Amount”)Agreement") and this Agreement. The Escrow Agreement shall be executed and delivered by Seller, Buyer and Escrow Agent (as defined below). In furtherance of the foregoing, the following shall apply:
(a) In lieu of delivering the Purchase Price to Seller as provided for in Section 1.3, Buyer shall deliver or cause to be delivered, at or prior to Closing, to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the aggregate amount of $400,000 representing the Purchase Price.
(b) In lieu of delivering to Buyer certificates for the Shares and the original Notes provided for in Section 1.4, Seller shall deliver or cause to be delivered to Escrow Agent, at or prior to Closing, for deposit into escrow pursuant to the Escrow Agreement, certificate(s) registered in the name of the Seller representing the Shares, accompanied by stock powers duly endorsed in blank with a medallion signature guarantee by a national bank, and the original Notes together with a duly executed acceptable assignment. Prior to or at Closing, Seller shall also deliver to Escrow Agent certificates registered in the name of the Seller representing an additional 600,000 shares of the Company's common stock ("Escrow Shares"), together with stock powers duly endorsed in blank with medallion signature guarantee, to be deposited in escrow and held in accordance with Section 1.6(c) below.
(c) At such time as all of the conditions precedent to Closing under Article VII hereof have been satisfied by the respective parties, and no party shall be in breach of any term, warranty, representation, covenant or agreement applicable to it or him, and each party shall have made all deliveries required by each of them under this Agreement, the parties hereto shall provide written notice to Escrow Agent directing that the funds and documents deposited in escrow be disposed of in accordance with the Escrow Agreement and the terms of this Agreement; provided, however, that the Escrow Agent shall hold retain the Escrow Amount Shares in escrow to satisfy any indemnification obligations of Seller under Section 8.2 hereof and under the Assumption Agreement (as defined in Sec- tion 7.3(d) hereof) ("Indemnity Escrow"). On the date forty-five (45) days following the Closing Date, to the extent that the Indemnity Escrow has not been and is not the subject of an indemnification claim under Section 8.2 hereof or under the Assumption Agreement, the Indemnity Escrow shall be released to the Seller.
(d) Buyer agrees to wire transfer a total sum of $30,000 (the "Deposit") to Escrow Agent upon execution and delivery of this Agreement and the Escrow Agreement, with the Deposit to be held in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with terms and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 conditions 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, 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 Escrow 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 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 Deposit shall be refunded and paid 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 Buyer 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent Transaction fails to close for any reason (other than solely as a result of Buyer's failure to satisfy the conditions precedent to Closing that are applicable to it under Section 7.2 or as a result of a material breach or inaccuracy of any representation, warranty, agreement or covenant by Buyer under this Agreement). The Deposit shall be uncertain as paid to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, Seller 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one Transaction fails to close solely as a result of Buyer's failure to satisfy the conditions precedent to Closing that are applicable to it under Section 7.2 or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk solely as a result of a court selected material breach or inaccuracy of any representation, warranty, agreement or covenant by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of Buyer under this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Multi Link Telecommunications Inc)
Escrow. (ia) Simultaneously with At the execution and delivery of this Agreement Closing, as provided in Section 2.3(c) hereof, Buyer shall deliver, by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds funds, (U.S. dollarsi) in an aggregate amount representing such Purchaser’s Subscription equal to the Adjustment Escrow Deposit Amount to be paid to the Escrow Agent for deposit into a non-interest bearing separate escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Adjustment Escrow AgentAccount”) set forth on Exhibit G attached hereto and (ii) an aggregate amount equal to the aggregate amounts received being held in escrow by Indemnity Escrow Deposit Amount to the Escrow Agent are referred to herein as for deposit into a separate escrow account (the “Indemnity Escrow AmountAccount”), in each case, established pursuant to the terms of the Escrow Agreement. The Adjustment Escrow Agent Funds shall hold be maintained separately in the Adjustment Escrow Account. The Indemnity Escrow Funds shall be maintained separately in the Indemnity Escrow Account. Buyer and the Seller shall each be responsible for one half (1/2) of the fees and expenses of the Escrow Amount Agent. Subject to the limitations set forth in escrow this Agreement, nothing in accordance with this Section 2.1(d)(ii) below2.6 shall be construed as limiting claims by a Buyer Indemnified Person for satisfaction of any indemnification or other claims pursuant to Section 8.2 or otherwise, to the amount then held in escrow.
(b) Seller, the Company, and Buyer agree for all Tax purposes that: (i) the right of Seller to the Adjustment Escrow Amount and the Indemnity Escrow Amount shall be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provisions of state, local or non-U.S. Law, as appropriate; (ii) The Escrow Agent interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; (iii) Buyer shall continue to hold be treated as the owner of the Adjustment Escrow Amount in escrow in accordance with and subject to this Agreement, the Indemnity Escrow Amount and all interest and earnings earned from the date of its receipt investment and reinvestment of the funds constituting the Adjustment Escrow Amount until and the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Indemnity Escrow Amount, then: (1or portion thereof, shall be allocable to Buyer pursuant to Section 468B(g) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, Code and 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 PurchaserProposed Treasury Regulation 1.468B-8; and (2iv) if in no event shall 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 total amount of the Adjustment Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and or the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Indemnity Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or paid to Seller under this Agreement exceed an order from a court of competent jurisdiction; OR
(B) in amount designated by the case of the Parties prior to 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.
(iiic) The Company On the third (3rd) Business Day after the twelve (12)-month anniversary of the Closing Date, Buyer and the Purchasers acknowledge and agree for the benefit of Seller shall cause 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 terms of the Escrow Agent in clause Agreement) to pay (Aby wire transfer of immediately available funds) and (Bto such account(s) is ministerial in naturedesignated by Seller, and no implied duties or obligations the amount of any kind shall remaining Indemnity Escrow Funds that are not claimed by Buyer, on or prior to the twelve (12)-month anniversary of the Closing Date, to be read into this Agreement against or owed to a Buyer Indemnified Person, together with any interest earned on any such amount, for distribution to Seller, all as may be provided in and pursuant to the part terms 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously with At the execution and delivery Closing Parent shall deposit two letters of this Agreement credit (each a “Letter of Credit”) issued by a Purchaserbank or other reputable financial institution, such Purchaser shall promptly cause a wire transfer each of immediately available funds which Letters of Credit may be drawn upon in the amount of $10,000,000 as described below (U.S. dollars) in an the $20,000,000 total amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account drawn upon under the Letters of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received Credit 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 2.1(d)(ii) below.
(ii) The pursuant to the terms of an Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) Agreement in the case form of the termination of this Agreement in accordance Exhibit E hereto, 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 such changes thereto as may reasonably be required by the escrow agent thereunder (the “Escrow Agreement”) among Parent, Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holdsShareholder Representative and a bank or other financial institution reasonably satisfactory to Parent, to each such Purchaser, and 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 consummatedShareholder Representative, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: escrow agent thereunder (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 (collectivelycapacity, the “Escrow Agent DutiesAgent”); .
(iiib) shall not be obligated to take If any legal shareholders of Company exercise, perfect and/or reserve their appraisal 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 dissenters rights pursuant 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 senderwith, the Person’s e-mail address.
(B) The Escrow Agent shall TBCA and if such shareholders of Company do not be liable to anyone withdraw such shareholders’ demand 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, 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 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 appraisal prior to the specified effective date of such resignation. All obligations expiration 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 time during which such shareholders of Company are permitted to effect such withdrawal under the effective date of resignationTBCA, at which time,
(I) if a successor escrow agent shall have been appointed and have accepted such appointment in a writing to both then, immediately after the Company and the Purchasers, then upon written notice thereof given to each first anniversary of the PurchasersClosing Date, the Escrow Agent shall deliver to Parent the amount by which the Escrow Amount to the successor escrow agent, and upon such delivery, exceeds 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 Company and the Placement Agent in form and formality satisfactory to the Escrow AgentFunds.
(Fc) 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 For purposes of this Agreement, the term “Escrow Agent Funds” shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved mean an amount equal to the Escrow Agent’s sole satisfaction product obtained by final judgment of a court of competent jurisdiction, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or multiplying the Escrow Amount, without interest, by a fraction, the Escrow Agent numerator of which shall not be required equal to determine the proper resolution of such controversy or Total Company Shares less the proper disposition of the Escrow AmountDissenting Shares, and the denominator of which shall have be equal to the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderTotal Company Shares.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (ia) Simultaneously For purposes of payment of the Members’ obligations pursuant to Section 2.4(e)(ii) and Article 7, the Escrowed Stock shall be held in escrow until distribution is required under the terms of this Agreement and the terms of the Escrow Agreement. With respect to each Member, such Member’s portion of the Escrowed Stock, as set forth in the Estimated Statement, associated with the execution Merger Interests owned of record by such Member shall be allocated to such Member’s escrow account maintained pursuant to the Escrow Agreement, such amount to be adjusted as set forth herein and delivery in the Escrow Agreement (each, an “Escrow Account”). The approval of this Agreement by the Members will constitute their approval of the terms and conditions of the Escrow Agreement, which is an integral part of the Merger, and the appointment of the Member Representative.
(b) The balance of each Member’s Escrow Account shall be available to satisfy such Member’s obligations pursuant to Section 2.4(e)(ii), Article 7 or any breaches of 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 Transmittal Letter until all amounts received being held in escrow such Member’s Escrow Account are released pursuant to Section 2.4(e)(ii), Article 7 or the terms of the Escrow Agreement. On the first anniversary of the Closing Date, all remaining amounts held in such Member’s Escrow Account shall be released to such Member, provided, however, that the amount so released from such Member’s Escrow Account shall be reduced by (A) any pending Claim against such Member made pursuant to Article 7; (B) all final and binding obligations with respect to Claims against such Member pursuant to Article 7 that have not been satisfied in full; and (C) any amounts due to the Escrow Agent are referred to herein from the Members as the “Escrow Amount”). The Escrow Agent shall hold provided in the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 . Any amounts with respect to such deposited funds, or (y) continue a pending Claim remaining in a Member’s Escrow Account pursuant 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 the foregoing proviso 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 released 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 final determination of such counsel Claim to the extent that any remaining amounts in any instance shall be full and complete authorization and protection in respect such Member’s Escrow Account exceed the aggregate amount of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of other Claims properly asserted against such counsel. Documents and written materials referred Member pursuant 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 addressArticle 7.
(Bc) 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 parties to this Agreement acknowledge and agree that the Escrowed Stock is being deemed delivered by the Parent to the Members on or promptly after the Closing Date, after which each Member is deemed to immediately deposit its pro rata share of the Escrowed Stock (based on the Per Interest Merger Consideration payable to the Members) into such Member’s Escrow AmountAccount on, or promptly after, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderClosing Date.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Enernoc Inc)
Escrow. (i) Simultaneously with Upon the execution and delivery signing of this Agreement by a Purchaserthe parties, such Purchaser shall promptly cause a wire transfer deliver the Deposit to the Title Company agent (the Escrow Agent). The parties agree that the Deposit shall be held by the Escrow Agent in escrow and disposed of immediately available funds (U.S. dollars) only in an amount representing such Purchaser’s Subscription Amount to accordance with the provisions of this Paragraph 21. The parties agree that the Deposit shall be paid to deposited into a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC account.
(the “Escrow Agent”a) 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 will deliver the Escrow Amount in escrow in accordance with Section 2.1(d)(iiDeposit to Seller or to Purchaser, as the case may be, under the following conditions:
(i) below.To Seller at the Closing upon the consummation thereof; or
(ii) To Seller upon receipt of written demand therefor, stating that Purchaser has defaulted in the performance of this Agreement and the facts and circumstances underlying such default; provided, however, that the Escrow Agent shall not honor such demand until more than five (5) days after the Escrow Agent shall have mailed a copy of such demand to Purchaser, or thereafter if the Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of clause (b) of this paragraph 21; or
(iii) To Purchaser upon receipt of written demand therefor, stating that this Agreement has been terminated in accordance with the provisions thereof, or Seller has defaulted in the performance of this Agreement, and the facts and circumstances underlying the same; provided, however, that the Escrow Agent shall not honor such demand until more than five (5) days after the Escrow Agent has mailed a copy of such demand to Seller or Purchaser, as the case may be, nor thereafter, if the Escrow Agent shall have received written notice of objection from the other party in accordance with the provisions of clause (b) of this paragraph 21.
(b) Upon the filing of a written demand for the Deposit by Purchaser or Seller, pursuant to subclause (ii) or (iii) of clause (a) of this paragraph 21, the Escrow Agent shall promptly mail a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by filing written notice of such objection with the Escrow Agent at any time within five (5) days after the mailing of such copy to it, but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, the Escrow Agent shall promptly mail a copy thereof to the party who filed the written demand.
(c) In the event the Escrow Agent shall have received the notice of objection provided for in clause (b) above of this Paragraph 21 and within the time therein prescribed, the Escrow Agent shall continue to hold the Deposit until (i) the Escrow Amount Agent receives written notice from Seller and Purchaser directing the disbursement of said Deposit, in escrow which case the Escrow Agent shall then disburse said Deposit in accordance with and subject to this Agreementsaid direction, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
or (A) in the case of the termination 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: (1ii) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, litigation between Seller and in the event of a termination by a Purchaser, the Escrow Agent shall return deposit the portion Deposit with the Clerk of the Escrow Amount received from such Purchaser Court in which it then holdssaid litigation is pending, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and or (2iii) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after takes such termination date, then affirmative steps as the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of at the Escrow Amount Agent's option, elect in order to terminate the Escrow Agent's duties including, but not limited to, deposit in Court and an action for interpleader, the costs thereof to be returned to such borne by whichever of Seller or Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and is 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 Companylosing party.
(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:
(Ad) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or may act upon 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 instrument 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 writing believed by it them in good faith to be genuine and to have been be signed or and presented by the proper Personperson, and shall have no responsibility for making inquiry as to, or for determining, not be liable in connection with 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 performance 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 duties imposed upon the Escrow Agent as having been signed by the provisions of this Agreement, except for the Escrow Agent's own willful misconduct and gross negligence. The Escrow Agent shall have no duties or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) responsibilities except those set forth herein. The Escrow Agent shall not be liable to anyone for bound by 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, 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 modification of this Agreement, unless the other Transaction Documentssame is in writing and signed by Purchaser and Seller, and, if 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 AgreementAgent's duties hereunder are affected, 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 unless Escrow Agent shall 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 given prior 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 resignationconsent thereto. 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain as to its the Escrow Agent's duties or rights hereunder hereunder, or shall receive instructions with respect to the Escrow Amount from Purchaser or any portion thereunder Seller which, in its sole discretionthe Escrow Agent's opinion, are in conflict either with other instructions received by it or with any provision of this Agreementthe provisions hereof, the Escrow Agent shall have be entitled to hold and apply the absolute right Deposit pursuant to suspend all further performance clause (c) above of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved paragraph 21, and may decline to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or take any other party with respect to this Agreement or the Escrow Amount, action. All fees of the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, borne equally by Purchaser and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderSeller.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Agreement to Sell, Purchase and Lease (First National Bancshares Inc /Sc/)
Escrow. (i) Simultaneously 2.1 In furtherance of the pledge, Pledgor hereby deposits the Collateral with the execution Escrow Agent, to be held and delivery applied as hereinafter set forth. The Collateral is registered in the name of Pledgor, accompanied by appropriate stock transfer powers duly executed in blank.
2.2 The parties agree that the Collateral is being deposited with the Escrow Agent as collateral security for the Company's payment of the Debt.
2.3 The Escrow Agent and the Pledgees agree that they shall not encumber or dispose of the Collateral except in accordance with the provisions of this Agreement by a Purchaser, such Purchaser Agreement. The parties further agree that the Collateral 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 for the “Escrow Amount”). The benefit of the Pledgees (it being the intent of the parties that possession of the Collateral by the Escrow Agent shall hold be equivalent to and have the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) belowsame legal effect as possession of the Collateral by the Pledgees themselves for purposes of the Uniform Commercial Code).
(ii) The Escrow Agent shall continue to hold the Escrow Amount 2.4 Unless otherwise provided in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest ofAgent shall:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Not 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 held liable to anyone for any action taken or omitted to be taken by under this Agreement so long as it hereunder, except shall have acted in good faith and without gross negligence;
(B) Be entitled to deem the case signatories of Escrow Agent’s gross negligence any documents or willful misconduct in breach instruments submitted to it hereunder to be those persons authorized to sign such documents or instruments and shall be entitled to rely upon the genuineness 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.signatures of such signatories without inquiry and without requiring substantiating evidence of any kind;
(C) The Company hereby indemnifies Be entitled to refrain from taking any action contemplated by this Agreement in the event it becomes aware of any disagreement between the parties hereto as to any material facts or as to the happening of any contemplated event precedent to such action, and holds harmless if any such dispute should arise and not be settled, the Escrow Agent from may commence an interpleader action in a court of competent jurisdiction and against any deposit the Collateral in its possession with the court for a determination of the dispute; and
(D) Be entitled to compensation for its services hereunder at its standard rate for its area of expertise and all loss, liability, cost, damage and expense, reimbursement of its normal out-of-pocket expenses including, without limitation, reasonable counsel the fees and expensescosts of attorneys or agents which it may find necessary, appropriate or desirable to engage in connection with the performance of its duties hereunder or the resolution of any disputes with respect thereto, which may be charged directly against the Collateral unless paid by the Pledgor and Pledgees equally or in such other proportions as they may agree, and the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against is hereby granted a prior lien upon the Escrow Agent arising out of or Collateral with respect to its unpaid fees and non-reimbursed expenses 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 its services as Escrow Agent.
(D) 2.5 The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, 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 have the right at any time to may resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation following the Escrow Agent Duties) by giving of thirty days' prior written notice of its resignation to the Companyother parties hereto, 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 Collateral in its possession to a successor agent as shall be appointed by the Pledgor and Pledgees within such notice period. If the Pledgor and the Pledgees are unable to agree upon a successor escrow agent, and upon during such deliveryperiod, the Escrow Agent shall have no further liability may continue to hold the Collateral until a successor is named or obligation; or
(II) if may petition any court of competent jurisdiction for the appointment of 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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentother appropriate relief.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the 2.6 The Escrow Agent shall not be required to determine the proper resolution of such controversy institute or the proper disposition of the Escrow Amount, defend any action involving any matters referred to herein or which affect its duties or liabilities hereunder unless or until requested to do so by any party to this Agreement and shall have the absolute rightthen only upon receiving full indemnity, in character and amount satisfactory to Escrow Agent, against any and all claims, liabilities, losses and expenses in relation thereto. In the event of any dispute among the parties hereto with respect to Escrow Agent or its sole discretionduties hereunder, Escrow Agent may refrain from acting until required to deposit the Escrow Amount with the clerk do so by order of a court selected by the of competent jurisdiction.
2.7 Pledgor and Pledgees jointly and severally agree to indemnify and hold harmless Escrow Agent from any 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 costs or expenses incurred by Escrow Agent in connection with the Escrow Amountdischarge of its duties and obligation hereunder. Upon the deposit by the Pledgor and Pledgees further covenant and agree to release, discharge and exonerate Escrow Agent in full upon the satisfactory completion of the Escrow Amount with the clerk of such court in accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability its duties hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Stock Pledge and Escrow Agreement (Xechem International Inc)
Escrow. (i) Simultaneously with the execution closing of the Business Combination, GigCapital4 shall deposit, for good and delivery valuable consideration, the receipt, sufficiency and adequacy of this Agreement by a Purchaserwhich GigCapital4 hereby acknowledges, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in into an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Account”) with Continental Stock Transfer & Trust Company (the “Escrow Agent”) set forth on Exhibit G attached hereto ), subject to the terms of a written escrow agreement (the aggregate amounts received being “Escrow Agreement”) substantially in the form attached as Exhibit A hereto and to be entered into prior to the Redemption Date, an amount equal to the lesser of (x) $25,375,000 and (y) $10.15 multiplied by the number of Shares and Additional Shares held in escrow by the Investors as of the closing of the Business Combination. Concurrently with the execution of the Escrow Agreement, the Company shall provide irrevocable written instructions to the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold release from the Escrow Amount in escrow Account the aggregate Shares Purchase Price in accordance with Section 2.1(d)(ii) below1 and the aggregate Early Sales Premium in accordance Section 4(d). The payments to be made by the Company to each Investor in accordance with Section 1 or Section 4(d), if applicable, will be made solely with funds from the Escrow Account.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 In the event of a termination that any Investor sells any Shares (including any Additional Shares) as provided in Section 4(d), upon receipt by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, Company 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 caseOpen Market Sale Notice, the Escrow Agent shall release from the Escrow Amount constituting the aggregate purchase price as follows: (1) Account to the Placement Company for the Company’s use without restriction an aggregate amount equal to the number of Shares (including any Additional Shares) sold multiplied by $10.15; provided that if an Investor sold any Early Sale Shares, within five (5) Business Days of the Company’s and the Escrow Agent’s receipt of the applicable Open Market Sale Notice, the fees payable Escrow Agent shall release from the Escrow Account (a) for the selling Investor’s use without restriction an amount equal to the Early Sale Premium with respect to the Early Sale Shares sold by such Placement Agent (which fees shall be set forth in such instructions)Investor, and (2b) for the balance of the aggregate purchase price Company’s use without restriction an amount equal to the Companynumber of Early Sale Shares sold in the Early Sale multiplied by $10.10.
(iii) The In the event that any Investor elects not to sell to the Company and the Purchasers acknowledge and agree for the benefit of any Shares (including any Additional Shares) held by such Investor by either (A) delivering a written notice to the Escrow Agent stating such Investor’s intention not to sell any Shares (which shall be deemed or any Additional Shares) to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The 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 such Investor failing to timely deliver a Shares Sale Notice to the Company and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (Apursuant to Section 1(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, 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 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 PurchasersShares, the Escrow Agent shall deliver release from the Escrow Amount Account 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, Company 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, ’s use without restriction an amount equal to (x) $10.15 multiplied by (y) the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agentnumber of Shares held by such Investor.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Forward Share Purchase Agreement (GigCapital4, Inc.)
Escrow. (ia) Simultaneously with the execution Closing, the Buyer, the Stockholder Representative Committee, and delivery Mellon Trust of this Agreement by a PurchaserNew England, 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 N.A., as escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC agent (the “Escrow Agent”) set forth on Exhibit G attached hereto ), are entering into an escrow agreement (the aggregate amounts received being held “Escrow Agreement”) in substantially the form of Exhibit C hereto for the purposes of (i) securing the payment of amounts, if any, payable to the Buyer pursuant to Section 1.9, (ii) securing the obligations of the Accredited Stockholders under Article VI and (iii) enabling the Buyer to receive reimbursement for payments in respect of Dissenting Shares in accordance with Section 1.7(b).
(b) Notwithstanding anything to the contrary herein, at the Closing, Accredited Stockholders shall be entitled to receive immediately 77.41522%) of the shares of Buyer Common Stock that they are entitled to receive in accordance with Section 1.4(b) and Section 1.4(c)(i), rounded down to the nearest whole number (the “Initial Shares”), and the remaining 22.58478%) of the shares of Buyer Common Stock to which they shall have a right to receive in accordance with Section 1.4(b) and Section 1.4(c)(i) (the “Escrowed Shares”) shall be deposited in escrow pursuant to, and shall be held and disposed of in accordance with, the terms of the Escrow Agreement.
(c) On the date hereof, the Buyer shall deliver to the Escrow Agent a certificate (issued in the name of the Escrow Agent or its nominee) representing the Escrowed Shares, which shall be held by the Escrow Agent are referred under the Escrow Agreement pursuant to herein as the “Escrow Amount”)terms thereof. The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 Escrowed Shares shall be set forth in such instructions), held as a trust fund 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 subject to take any legal lien, attachment, trustee process or any other action hereunder which might in its judgment involve or cause it to incur judicial process of any expense or liability unless it shall have been furnished with indemnification acceptable to itcreditor of any party, 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 held and believed by it to be genuine and to have been signed or presented by disbursed solely for 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 purposes and in accordance with the opinion or advice terms 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 addressAgreement.
(Bd) 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 adoption 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, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to approval of the Placement Agent including, without limitation, with regard to any dispute arising out Merger by the Consenting Stockholders shall constitute approval of this the Escrow 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 Stockholders Representative Agreement and of 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 necessaryarrangements relating thereto, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 placement of its resignation to the CompanyEscrowed Shares in escrow, the Placement Agent appointment of the Stockholder Representative Committee and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations deposit of the Escrow Agent hereunder shall cease and terminate on Stockholder Representative Reserve Amount (as hereinafter defined) in the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten Stockholder Representative Reserve Fund (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 Company and the Placement Agent in form and formality satisfactory to the Escrow Agentas hereinafter defined).
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (i) Simultaneously with At the execution and delivery of this Agreement by a PurchaserEffective Time, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) cash in an amount representing such Purchaser’s Subscription equal to the Escrow Amount shall be delivered or caused to be paid delivered by Parent to a non-interest bearing The Bank of New York Trust Company, N.A., as escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC agent (the “Escrow Agent”) set forth on pursuant to the provisions of the escrow agreement in the form attached as Exhibit G attached hereto C hereto, subject to any amendments to such form requested by the Escrow Agent and mutually agreed to by Parent and the Representative (the aggregate “Escrow Agreement”); provided, however, that the allocable portion of the Escrow Amount attributable to the Unvested Common Shares shall not be delivered to the Escrow Agent until the Initial Merger Consideration with respect to those shares has vested pursuant to the applicable Restricted Stock Purchase Agreement in accordance with the schedule thereof incorporated in the disbursement agreement between Parent and the Paying Agent. 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 provide Parent with recourse against amounts received being held in escrow by the Escrow Agent are (the “Escrow Funds”) with respect to any and all Parent Claims made under Section 14, subject to the terms and conditions set forth in the Escrow Agreement and in such Section 14 of this Agreement. The Escrow Amount (or any portion thereof) shall be distributed to the Indemnifying Securityholders, and Parent at the times, and upon the terms and conditions, set forth in the Escrow Agreement. All interest earned on the Escrow Funds shall be payable to Parent and all such interest income shall be reported by the Escrow Agent to Parent. Upon any release of the Escrow Funds payable to the Indemnifying Stockholders, Parent shall pay to the Escrow Agent for further distribution to the Indemnifying Stockholders an amount equal to the interest actually earned on the amount of Escrow Funds so released. The escrow described above shall commence on the Effective Time and terminate on the 18-month anniversary thereof (the “Expiration Date”) and the period between the Effective Time and the Expiration Date shall be referred to herein as the “Escrow AmountPeriod”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17provided, in which casehowever, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return that the portion of the Escrow Amount received from each Purchaser which it then holdsFunds, which, in the reasonable judgment of Parent, subject to each 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 Purchaserclaims have been finally resolved, or, if earlier, until released in accordance with Section 14.9 below. The terms and provisions of the Escrow Agreement and the transactions contemplated thereby are specific terms of the Merger, and in the event approval and adoption of a termination this Agreement and approval of the Merger by a Purchaserthe Indemnifying Securityholders pursuant to the Stockholders’ Written Consent, the Warrant Holder Consent Agreement, and the Option Holder Consent, as the case may be, 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 Agent shall return the portion Agreement and all 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; arrangements 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 provisions 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 expenserelating thereto, 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 provisioninto 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 Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. (a) Prior to or concurrently with the Effective Time: (i) Simultaneously Parent and S&T shall enter into an escrow agreement, in the form attached hereto as EXHIBIT A (the "Escrow Agreement"), with such escrow agent as may be designated by Parent (the execution "Escrow Agent") 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 ▇▇▇G. Ogde▇ ▇▇▇▇▇▇▇ ▇▇▇ Wilb▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇ PC representatives of the holders of S&T Common Shares (the “"Representatives"); and (ii) subject to Section 7.4(c)(iv), Parent shall deposit with the Escrow Agent”, pursuant to the Escrow Agreement, Three Million Dollars ($3,000,000) set forth on Exhibit G attached hereto in immediately available funds (the aggregate amounts received "Escrow 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 (collectively, the "Escrowed Property") 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 are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(iifor a period of eighteen (18) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreementmonths after which time any remaining Escrowed Property will be disbursed, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 on a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holdspro rata basis, to each such Purchaserthe Certificate holders of S&T Common Shares; PROVIDED, and in the event of a termination by a PurchaserHOWEVER, 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 Escrowed Property sufficient to completely discharge the amount of any claim for indemnification made by written wire transfer instructions from demand before the expiration of such Purchaser or an order from a court of competent jurisdiction; OR
18-month period (Bas provided in Section 1.11(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: (1Agreement) 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 held 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 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 having been signed or presented by a Person if it bearsRepresentatives, as senderParent shall pay to the Representative the sum of One Hundred Thousand Dollars ($100,000), which amount shall be deducted from the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted aggregate Merger Consideration otherwise to be taken deposited into the Exchange Fund and any unused portions of such amount shall be distributed by it hereunder, except the Representative to the holders of S&T Common Shares in proportion to their Proportionate Share (as defined in the case of Escrow Agent’s gross negligence or willful misconduct in breach Agreement) at the termination 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Elder Beerman Stores Corp)
Escrow. (a) As security for Seller's obligations under Sections 3 and 4 above, Seller shall deposit into escrow with Escrowee at Closing an amount equal to $250,000 (the "Escrow"). Seller may, from time to time, request reimbursement from the Escrow of amounts incurred pursuant to the provisions of Sections 3 and 4 above. Each such request shall be in writing and shall be accompanied by (i) a statement, duly executed by Seller, certifying to Escrowee and Purchaser that the amount requested has been incurred pursuant to the provisions of this Agreement and (ii) a copy of an invoice by Consultant for the work in question. Simultaneously with the execution and delivery of this Agreement by any such request to Escrowee, Seller shall furnish a copy thereof to Purchaser. Within ten (10) days of its receipt of any such request, 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 accompanied by the Escrow Agent are referred materials specified above, Escrowee shall release the requested amount to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) belowSeller.
(iib) The Upon Seller's payment and performance of all of its obligations under Sections 3 and 4 above, Seller may furnish Escrowee with notice (the "Escrow Agent shall continue Release Notice") of its entitlement to hold the release of the Escrow Amount or so much thereof as remains in escrow in accordance (the "Escrow Balance"). Escrowee, promptly following its receipt thereof, shall furnish Purchaser with and subject to this Agreementa copy of the Escrow Release Notice. Purchaser may, from the date within ten (10) days of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17Release Notice, 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, object to each such Purchaser, and 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 AmountBalance upon notice to Escrowee. If Purchaser fails to object to such release in the time and in the manner hereinbefore prescribed, and (B) disbursing Purchaser hereby authorizes Escrowee to release the Escrow Amount Balance to Seller. If Purchaser objects to such release in accordance with the written instructions from time and in 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 (collectivelymanner hereinbefore prescribed, the “Escrow Agent Duties”); provisions of Section 7(c) shall apply.
(iiic) Notwithstanding any contrary provision contained in this Agreement, Seller shall not be obligated responsible for the expenditure of in excess of an amount equal to take any legal the Escrow (or other action hereunder which might the Escrow Balance, as the case may be) in the payment and performance of 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 obligations under this Agreement. Upon the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or disbursement of the authority entire amount of the Person signing or presenting the same; and (v) may consult counsel satisfactory to itEscrow, 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, 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 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 Seller shall have no further liability obligations under this Agreement 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 Company and the Placement Agent in form and formality satisfactory to 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 otherwise with respect to the Escrow Amount environmental condition of the Premises. Upon a default by Seller in the payment 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 (except obligations hereunder, which default occurs prior to the disbursement of the entire amount of the Escrow, Purchaser's sole remedy shall be a claim for damages on account thereof, not to exceed the Escrow Balance. Purchaser's sole recourse for the safekeeping recovery of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to damages shall be the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdictionBalance, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwise. In the event it being understood that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and Seller shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all no personal liability hereundertherefor.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Sale Purchase Agreement (Wellsford Real Properties Inc)
Escrow. (i) Simultaneously with the execution closing of the Business Combination, SPAC shall deposit, for good and delivery valuable consideration, the receipt, sufficiency and adequacy of this Agreement by a Purchaserwhich SPAC hereby acknowledges, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in into an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Account”) with Continental Stock Transfer & Trust Company (the “Escrow Agent”) set forth on Exhibit G attached hereto ), subject to the terms of a written escrow agreement (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow AmountAgreement”) substantially in the form attached as Exhibit A hereto and to be entered into simultaneously with this Agreement, an amount equal to $[ ] (the “Escrowed Funds”). The Escrow Agent Agreement shall hold irrevocably cause the Escrow Amount in escrow Agent to release from the Escrow Account the aggregate Shares Purchase Price in accordance with Section 2.1(d)(ii) below1. The payments to be made by the Escrow Agent to the Investor in accordance with Section 1 or to the Investor and SPAC in accordance with Section 4(b), if applicable, will be made solely with the Escrowed Funds.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its Upon receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if by the Escrow Agent then holds any portion and Company of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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, Investor has sold Shares as provided in which caseSection 4(b), the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to SPAC for SPAC’s use without restriction an amount equal to the Placement Agent, number of Early Sale Shares sold in 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 CompanyEarly Sale multiplied by $10.30.
(iii) The Company and In the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed event that Investor elects not 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 sell to SPAC any Shares held 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 such Investor 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, 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 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 an Investor’s delivering a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, the Placement Agent and the PurchasersSPAC stating such Investor’s intention not to sell any Shares to SPAC, or (B) continue such Investor’s failing to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory timely deliver a Shares Sale Notice to SPAC pursuant to Section 1(a) for all of its Shares, SPAC may issue instructions to the Escrow Agent.
(F) In the event that Agent to release from the Escrow Agent shall be uncertain as Account to its duties or rights hereunder or shall receive instructions with respect SPAC for SPAC’s use without restriction an amount equal to (x) the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received Shares Purchase Price multiplied by it or with any provision (y) the number of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of Shares held by 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunderInvestor.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Forward Share Purchase Agreement (CHW Acquisition Corp)
Escrow. (a) The escrow payment referred to in Section 1.2(a) hereof, shall be placed in a banking institution in an interest-bearing money market account satisfactory to Purchaser and the Sellers for a period beginning on the Closing Date and ending on the ninetieth (90th) day after the Closing Date, to be disbursed solely upon the joint signatures of Purchaser and Sellers, all as set forth below. Disbursements from the amount in escrow from time to time (the "Escrow Amount") shall be made for the payment of amounts, if any, to secure the indemnification obligations of Sellers pursuant to Section 10.2(a) hereof.
(b) The Escrow Amount shall be disbursed during the term hereof as follows:
(i) Simultaneously with At any time or from time to time, Purchaser may give the execution and delivery Sellers written notice asserting a claim for indemnification pursuant to Section 10.2(a) hereof ("Notice 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”Claim"). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) belowSuch Notice of Claim must be for a specified amount.
(ii) The Escrow Agent Each Notice of Claim shall continue (A) be signed by a proper representative of Purchaser, (B) contain a description of the claim and reasonable documentation with respect thereto, (C) specify the amount of such claim, and (D) state that, in the opinion of the signer thereof, such notice of claim is valid under the terms of Section 10.2(a) hereof and is being given by the Purchaser in good faith.
(iii) Subject to hold subsection (iv) below, thirty days after receipt of such Notice of Claim, Sellers will join with Purchaser in a joint instruction to release to the Purchaser from the Escrow Amount a cash sum equal to the amount specified in escrow in accordance said Notice of Claim delivered pursuant to paragraph (ii)(C) above. Sellers are not required to agree to take any action with respect to a Notice of Claim that fails to specify the amount of the claim asserted thereby unless and subject until Purchaser gives Sellers a written supplement thereto signed by a proper representative of Purchaser specifying the amount of such claim. Subject to this Agreementsubsection (iv) below, from the date of its thirty days after receipt of any such supplement, Sellers will join with Purchaser in a joint instruction to release said amount to Purchaser as if the funds constituting amount specified in such supplement had been originally specified in the Escrow Amount until related Notice of Claim pursuant to paragraph (ii)(C) above.
(iv) Instead of the soonest of:
payment specified in paragraph (iii) above, Sellers may give the Purchaser written notice ("Notice of Objection") (A) attaching a copy of such Notice of Claim, (B) stating that, in the case good faith opinion of the termination 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 CompanySellers, the Escrow Agent shall return claim described in such Notice of Claim is invalid (either in whole or in specified part) under the portion terms of Section 10.2(a) hereof, (C) giving the Escrow Amount received from each Purchaser which it then holds, to each such Purchaserreasons for the alleged invalidity, and in (D) stating that, based on such alleged invalidity, Sellers object to the event payment 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 the requesting party 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, 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 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.account
Appears in 1 contract
Sources: Stock Purchase Agreement (Corrpro Companies Inc /Oh/)
Escrow. (i) Simultaneously with a. On or before the execution and delivery date of this Agreement by a Purchaserthe Closing, such Purchaser each Investor shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount have delivered to be paid to a non-interest bearing escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto Agent the Purchase Price for the Investor Shares (the aggregate amounts received being of purchase price referred to as the “Escrowed Funds”) and the Transaction Documents. The parties shall ensure that each Investor’s portion of the Escrowed Funds will be delivered to the Escrow Agent pursuant to the wire transfer instructions provided in Section 4(b).
b. The Company intends that the Transaction Documents and the Escrowed Funds shall be held in escrow by the Escrow Agent are referred pursuant to herein this Agreement for its benefit and for the benefit of the Investors as the “Escrow Amount”). set forth herein.
c. The Escrow Agent shall hold and release the Escrow Amount in escrow Transaction Documents and the Escrowed Funds only in accordance with the terms and conditions of this Section 2.1(d)(ii) below14.
(ii) The Escrow Agent shall continue d. Subject to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date provisions of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 case14(f), the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price Transaction Documents and Escrowed Funds as follows: (1) :
i. On the Closing Date, the Escrow Agent will release the Transaction Documents 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 Escrowed Funds to or for the benefit of the Company except that the legal fees and expenses owed to Gottbetter & Partners, LLP, as counsel to the Company, shall be deducted from the Escrowed Funds and released to Gottbetter & Partners, LLP.
ii. All funds to be delivered to the Company shall be delivered pursuant to written instructions substantially in the form of Exhibit A hereto (the “Instructions”) signed by the Company.
iii. Notwithstanding the above, upon receipt by the Escrow Agent of the Instructions, the Escrow Agent shall deliver the Transaction Documents and the Escrowed Funds in accordance with the terms of the Instructions; provided, however, that in the event of any conflict between such Instructions and the provisions of Section 14(d)(i) of this Agreement, the provisions of Section 14(d)(i) shall control.
iv. Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”), the Escrow Agent shall deliver the Transaction Documents and the Escrowed Funds in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be deemed satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.
v. If an Investor’s subscription is rejected for any reason or if the Offering is otherwise terminated or withdrawn, then the Escrow Agent shall release the respective Transaction Documents and the respective Escrowed Funds to the appropriate Investors as soon as reasonably possible, without interest or deduction.
vi. The Company acknowledges that the only terms and conditions upon which the Transaction Documents and Escrowed Funds are to be a third party beneficiary of released are set forth in this Section 2.1(d)) as follows:
(A) 14. The Escrow Agent: (i) is not responsible for the performance Company reaffirms its agreement to abide by the Company, the Purchasers or Placement Agent terms and conditions of this Agreement or any with respect to the release of the Transaction Documents and the Escrowed Funds. Any dispute with respect to the release of the Transaction Documents or the Escrowed Funds shall be resolved pursuant to Section 14(f) or by agreement between the parties.
e. The Escrow Agent’s duties and responsibilities shall be subject to the following terms and conditions:
i. The Company and the Investors acknowledge and agree that the Escrow Agent (i) shall not be responsible for determining or compelling compliance therewithbound by, and shall not be required to inquire into whether either the Company or the Investors are entitled to receipt of the Transaction Documents or the Escrowed Funds pursuant to, any other agreement or otherwise; (ii) is shall be obligated only responsible for (A) holding the Escrow Amount in escrow pending receipt performance 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 such duties as are specifically assumed by 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 pursuant to this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”)Agreement; (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 the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper Personperson or party, and shall have no responsibility for making inquiry as to, without being required to determine the authenticity or for determining, correctness of any fact stated therein or the genuineness, accuracy propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than the Escrow Agent gives its own similar property, or but in no event less than a reasonable amount of the authority of the Person signing or presenting the samecare; and (vvi) may consult with counsel satisfactory to itthe Escrow Agent, and the opinion or advice of such counsel in any instance shall to be full and complete authorization and protection in respect of any action taken, suffered or omitted by it the Escrow Agent hereunder in good faith and in accordance with the opinion or advice of such counsel.
ii. Documents The Company 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 Investors acknowledge that the Escrow Agent is acting solely as having been signed or presented by a Person if it bears, as sender, stakeholder at their request and that the Person’s e-mail address.
(B) The Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by the Escrow Agent to anyone be authorized or within the rights or powers conferred upon the Escrow Agent by this Agreement. The Company agrees to indemnify and hold harmless the Escrow Agent and any of the Escrow Agent’s partners, employees, agents and representatives for any action taken or omitted to be taken by it the Escrow Agent or any of them hereunder, including the fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach on the part of the Escrow Agent Dutiescommitted in its capacity as Escrow Agent under this Agreement. 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 ACTIONThe Escrow Agent shall owe a duty only to the Company and the Investors under this Agreement and to no other person.
(C) iii. The Company hereby indemnifies and holds harmless agrees to reimburse the Escrow Agent from for outside counsel fees, to the extent authorized hereunder and against incurred in connection with the performance of its duties and responsibilities hereunder.
iv. The Escrow Agent may at any time resign as Escrow Agent hereunder by giving five (5) days prior written notice of resignation to the Company. Prior to the effective date of the resignation as specified in such notice, the Company will issue to the Escrow Agent an instruction authorizing delivery of the Transaction Documents and all lossthe Escrowed Funds to a substitute escrow agent selected by the Company. If no successor escrow agent is named by the Company, 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, 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 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 apply to a court of competent jurisdiction selected by in the State of New York for appointment of a successor escrow agent, and to deposit the Transaction Documents and Escrowed Funds with the clerk of any such court.
v. The Escrow Agent does not have and will not have any interest in the Transaction Documents or the Escrowed Funds, but is serving only as escrow agent in connection therewith, having only possession thereof.
vi. This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and give written notice thereof all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement.
vii. The provisions of this Section 14(e) shall survive the resignation of the Escrow Agent or the termination of this Agreement.
f. Resolution of disputes arising under this Section 14 shall be subject to the Companyfollowing terms and conditions:
i. If any dispute shall arise with respect to the delivery, ownership, right of possession or disposition of the Placement Agent and Transaction Documents or the PurchasersEscrowed Funds, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that if the Escrow Agent shall in good faith 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 Agreementhereunder, the Escrow Agent shall have be authorized, without liability to anyone, to (i) refrain from taking any action other than to continue to hold the absolute right to suspend all further performance Transaction Documents or the Escrowed Funds pending receipt of its duties under this Agreement (except for the safekeeping of 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, joint written instructions an Instruction from the Company, or (ii) deposit the Placement Transaction Documents and Escrowed Funds with any court of competent jurisdiction in the State of New York, in which event the Escrow Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between shall give written notice thereof to the Company and one shall thereupon be relieved and discharged from all further obligations pursuant to this Agreement. The Escrow Agent may, but shall be under no duty to, institute or more defend any legal proceedings which relate to the Transaction Documents or the Escrowed Funds. The Escrow Agent shall have the right to retain counsel if it becomes involved in any disagreement, dispute or litigation on account of the Purchasers or any other party with respect to this Agreement or otherwise determines that it is necessary to consult counsel.
ii. The Escrow Agent is hereby expressly authorized to comply with and obey any Court Order. In case the Escrow AmountAgent obeys or complies with a Court Order, the Escrow Agent shall not be required liable to determine the proper resolution Investors, the Company or to any other person, firm, corporation or entity by reason of such controversy or compliance.
g. The escrow established hereby shall terminate upon the proper disposition release of all of the Escrow Amount, Transaction Documents and shall have delivery to the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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 Company of the Escrow Amount with the clerk of such court Escrowed Funds in accordance with this provisionSection 14, or at any time upon the agreement in writing of the Investors and the Company.
h. The Escrowed Funds shall neither be held in an interest bearing account nor will interest be payable in connection therewith. In the event the Escrowed Funds are deposited in an interest bearing account, each Investor shall be entitled to receive its pro rata portion of any accrued interest thereon, but only if the Escrow Agent shall thereupon be relieved of all further obligations receives from such Investor the Investor’s taxpayer identification number and released from all liability hereunderother requested information and forms.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Escrow. No later than 5:00 p.m. San Francisco time on September 25, 2014:
(a) CPT‑I, CPT‑II, CPT-IOM, CPTC and CTC shall establish a documentary escrow with Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP acting as the escrow agent (“Escrow Agent”), pursuant to which the documents described in this Section 3 shall be deposited with the Escrow Agent to be held in escrow as provided in this Section 3.
(b) CPT‑I, CPT‑II and CPT-IOM shall deliver to the Escrow Agent (i) Simultaneously undated, executed originals of the bills of sale described in Section 1(b)(iii), (c)(iii) and (d)(iii) (collectively, the “Bills of Sale”); and (ii) undated agreements for termination of the Cygnus Management Agreement, the Altair Management Agreement and the Sirius Management Agreement in the form of Exhibit M (collectively, the “Management Agreement Terminations”), executed by CPT‑I, CPT‑II and CPT-IOM, and Frontline.
(c) CPTC shall deliver to the Escrow Agent (i) an undated request, executed by CPTC, in the form of Exhibit C (“CPTC Notice”), wherein CPTC requests that the Indenture Trustee deliver a notice, 705359146v10 in the form of Exhibit F (“CTA Termination Notice”), to the Collateral Trustee pursuant to section 7.09 of the CTA, stating that “Secured Obligations” (as defined in the CTA) arising under or in connection with the execution Term Indenture and delivery the Bonds have been paid in full; (ii) an undated officer’s certificate, in the form of this Agreement Exhibit D (“Officer’s Certificate”), signed by the secretary to CPTC; (iii) a Purchaserdated legal opinion, such Purchaser shall promptly cause in the form of Exhibit E (“Legal Opinion”), dated October 1, 2014 and signed by ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to CPTC; (iv) the CTA Termination Notice, undated but executed by the Indenture Trustee; (iv) the affidavit of loss and succession and memorandum of discharge on the reverse of a wire transfer copy of immediately available funds the Cygnus Mortgage required for terminating the registration of the mortgage, in the form of Exhibit G (U.S. dollars“Cygnus Mortgage Termination”), naming the “▇▇▇▇▇▇ ▇▇▇▇” as the vessel (renamed the “Cygnus Voyager”), undated but executed by the Collateral Trustee; (v) the affidavit of loss and succession and the memorandum of discharge on the reverse of a copy of the Altair Mortgage required for terminating the registration of the mortgage, in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account the form of Exhibit H (“Altair Mortgage Termination”), naming the “▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ” as the vessel (renamed the “Altair Voyager”), undated but executed by the Collateral Trustee, (vi) the affidavit of loss and succession and the memorandum of discharge on the reverse of a copy of the Sirius Mortgage required for terminating the registration of the mortgage, in the form of Exhibit I (“Sirius Mortgage Termination”), for the termination of the ship mortgage, naming the “Chevron Mariner” (renamed the “Sirius Voyager”), undated but executed by the Collateral Trustee; (vii) the agreement to terminate the DRA, in the form of Exhibit K (“DRA Termination”), undated but executed by CPTC and CalPetro Holdings Limited; and (viii) an undated notice addressed to ▇▇▇▇▇ PC & McLennan Companies Inc., in the form of Exhibit L (“Insurance Termination Notice”), signed by the Collateral Trustee, notifying ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Companies Inc. of the termination of the assignment of insurance for the vessels chartered under the Charters.
(d) CPTC, CTC and U.S. Bank National Association shall have executed and delivered an escrow agreement in the form of Exhibit O (“Escrow Agreement”) setting forth the terms and conditions governing the account to which CTC shall make the payment of the amounts set forth in Sections 1(b), 1(c) and 1(d) (the “Escrow AgentAccount”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by and CPTC and CTC shall have delivered to the Escrow Agent are referred the executed request for disbursement of funds, in the form of exhibit A to herein as the Escrow Agreement, (the “Escrow AmountDisbursement Request”). The Escrow Agent ) which Disbursement Request shall hold contain blanks for the Escrow Redemption Amount in escrow in accordance with Section 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, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and 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 CPTC Payment Amount. On October 1, 2014, CPTC 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, 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 instruct the Escrow Agent to represent insert the Placement Agent Redemption Amount and the CPTC Payment Amount set forth in connection with all matters relating the revised Exhibit N delivered pursuant to this Agreement, including, without limitation, with regard to any dispute arising out of this AgreementSection 1(e) in such Disbursement Request, the other Transaction Documentstotal of which shall not exceed the aggregate of the amounts payable by CTC pursuant to Sections 1(b), the Escrow Amount or any other matter1(c) and 1(d) hereof, 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, CPTC and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent CTC shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation authorize 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 completed Disbursement Request 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 Company and the Placement Agent in form and formality satisfactory to the Escrow AgentU.S. Bank National Association.
(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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Early Termination Agreement (California Petroleum Transport Corp)
Escrow. (ia) Simultaneously $1,000,000 of the Cash Merger Consideration (the “Escrow Amount”) shall be deposited with the execution and delivery of this Agreement by a PurchaserDeutsche Bank National Trust Company, 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 as escrow account of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC agent (the “Escrow Agent“), to constitute a collateral fund (the “Escrow Fund“) for purposes of securing the indemnification obligations of the former holders of the Target Series C Preference Shares (the “Escrow Shareholders”) under Article VIII of this Agreement. Notwithstanding anything to the contrary in this Agreement, recourse against the Working Capital Escrow Fund (solely in relation to Section 1.7 hereof) and the Escrow 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 on Exhibit G attached hereto in Section 8.4 hereof) shall constitute the sole and exclusive remedy of any Acquiror Indemnified Party (the aggregate amounts received being as defined in Article VIII) under this Agreement, except as otherwise set forth in Section 9.6(a) hereof. The Escrow Amount shall be held in escrow pursuant to an escrow agreement in substantially the form attached hereto as Exhibit D or in such form as otherwise mutually agreed upon by the parties (the “Escrow Agreement”) to be executed by Acquiror, Target, the Shareholders Representative and the Escrow Agent at or prior to Closing.
(b) Subject to 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 are referred to herein as on the date that is 24 months after the Closing Date (the “Escrow AmountTermination Date”). The Escrow Agent shall hold ) to the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold Shareholders. Notwithstanding the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination 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 Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holdsforegoing, to each such Purchaserthe extent that any then pending and unresolved claims for indemnification under Section 8.2 exist, and 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 necessary to be returned to satisfy 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 claims 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 retained by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail addressuntil such claims are finally resolved.
(Bc) 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 Claims against the Escrow Agent arising out of or relating to Fund shall be resolved between 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 Indemnified Parties and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to Shareholders Representative in 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 manner provided 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 adviceArticle VIII hereof.
(E) The Escrow Agent shall 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 Company and the Placement Agent in form and formality satisfactory to 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 (except for the safekeeping of 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, joint written instructions from the Company, the Placement Agent and all of 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 this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent 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, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
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Sources: Merger Agreement (Microtune Inc)