Escrow. (A) At the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following: (I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced. (II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification. (III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller. (IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s). (V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery. (B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. Upon execution of this Agreement, Pledgor shall deposit with Escrow Agent the Pledged Shares, along with the aforesaid Assignment (Aall of which items shall hereinafter be referred to as the "Pledged Documents") At to be held in escrow for future delivery as follows:
a. Escrow Agent shall deliver the ClosingPledged Documents to Pledgee within ten (10) days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the Note and all periods of time within which to cure such default have expired;
(ii) Pledgee is accelerating the entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of said affidavit. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has not delivered the Pledged Documents pursuant to an subparagraph a above, then Escrow Agreement Agent shall deliver the Pledged Documents to be entered into by the parties substantially in the form of Exhibit 2.3, a portion Pledgor within ten (10) days after receipt of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (original of the Note marked "Escrow Deposit"), based upon paid in full," accompanied by instructions from Pledgor indicating that said Note has been paid in full and the valuation described in Section 3.1(a) below, Pledged Documents shall be delivered by Buyer, on behalf to Pledgor at the address specified therein. Upon such delivery of the SellerPledged Documents, Escrow Agent's duties hereunder shall terminate. Pledgee agrees to CoreStates Bankdeliver the Note to Pledgor marked "paid in full," immediately upon satisfaction thereof.
c. Upon execution of this Agreement, N.A.Pledgor shall deliver to the Escrow Agent Stock Certificate Number________________, representing_________ _____________________________ shares of common stock of Centrack International, Inc. Pledgor shall further execute an endorsement/assignment of said Certificate appointing the Escrow Agent as escrow agent Attorney to effectuate division and reissuance of same as follows: Initials / ---------------
1. Two Hundred Fifty Thousand (the "Escrowee"). The Escrow Deposit shall 250,000) shares to Pledgor, same to be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed in escrow by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer Escrow Agent pursuant to the post-Closing adjustments set forth in Section 2.2(b)terms of this Agreement.
2. One Hundred Twenty Thousand (120,000) shares to the Pledgee as consideration for the loan being extended pursuant to the $60,000.00 Promissory Note attached hereto.
3. ________________________________shares which shall be forwarded to Pledgor upon receipt by the Escrow Agent. Nothing hereinabove withstanding to the contrary, until such time as the above division of the stock is accomplished, the Escrowee total number of shares shall release to Buyer that portion constitute collateral for payment of the obligations pursuant to this Agreement. Pledgor and Pledgee hereby acknowledge that the Escrow Deposit Agent is making no representations as to right or legality pertaining to the above division of the stock or its sale in the event of the default, and Pledgor and Pledgee each agree that Escrow Agent shall have a value equal no liability resulting from the inability to accomplish the terms of this Pledge Agreement due to the amount by which inability to divide, transfer or sell the Merger Consideration is so reducedstock. Pledgor and Pledgee each agree to indemnify and hold Escrow Agent harmless in this regard and as otherwise provided for in this Agreement.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Centrack International Inc)
Escrow. (Aa) At The Restricted Shareholder hereby authorizes and directs the ClosingSecretary of the Company (the “Secretary”), or such other person designated by the Company, to transfer the Restricted Shares which are subject to the Restrictions from the Restricted Shareholder to the Company or the Partnership, as applicable, in the event of 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 an the Joint Escrow Agreement Instructions of the Company and the Restricted Shareholder attached hereto as Exhibit B, until all of the Restrictions expire or shall have been removed. Upon the lapse of the Restrictions on the Restricted Shares, the escrow agent shall promptly deliver to be entered into by the parties substantially Restricted Shareholder the certificate or certificates representing such shares in the form of Exhibit 2.3escrow agent’s possession belonging to the Restricted Shareholder (or evidence through book entry), a portion of and the Merger Consideration as escrow agent shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (discharged of all further obligations hereunder; provided, however, that the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, escrow agent shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., nevertheless retain such certificate or certificates as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, if so required pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer other restrictions imposed pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedthis Agreement.
(IIc) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2The Company, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owingor its designee, shall not be made), shall be released liable for any act it may do or omit to do with respect to holding the Seller promptly after resolution Restricted Shares in escrow and while acting in good faith and in the exercise of such claim(s)its judgment.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Restricted Share Agreement (Tanger Factory Outlet Centers, Inc)
Escrow. (Aa) At the Closing, ▇▇▇▇▇ will deliver to the Escrow Amount, by wire transfer of immediately available funds, to the Escrow Account with the Escrow Agent pursuant to an the Escrow Agreement Agreement. Subject to Section 2.13(b), the Escrow Amount plus all earnings thereon (the “Escrow Funds”) will be entered into available to satisfy any Indemnification Claims made by a Buyer Indemnitee until the parties substantially Expiration Date and any unclaimed amounts shall be released and distributed to Integrity (for the benefit of each Seller in proportion to the form of Exhibit 2.3, a portion value of the Merger Consideration Transferred Assets owned and Assumed Liabilities owed by each such Seller relative to the value of the Transferred Assets owned and the Assumed Liabilities owed by all Sellers) after the Expiration Date.
(b) If there is an Unresolved Claim that is made by Buyer or any Buyer Indemnitee (in either case, acting in good faith) that is outstanding as of the Expiration Date, then Buyer’s right to recourse with respect to such Unresolved Claim shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit")sum of such Unresolved Claim and shall survive after the Expiration Date until such time as such claim is fully and finally resolved and any applicable funds have been distributed to the Buyer Indemnitee, based upon at which time the valuation described in Section 3.1(a) below, remaining balance thereof shall be delivered by Buyer, on behalf released and distributed to Integrity (for the benefit of each Seller in proportion to the value of the Seller, Transferred Assets owned and Assumed Liabilities owed by each such Seller relative to CoreStates Bank, N.A., as escrow agent (the "Escrowee"value of the Transferred Assets owned and the Assumed Liabilities owed by all Sellers). The Escrow Deposit Any amount due to a Buyer Indemnitee pursuant to ARTICLE VII hereof shall be held paid by the Escrow Agent from the Escrow Funds in accordance with Section 2.13 hereof and the Escrow Agreement; provided, that nothing in this Section 2.13 shall limit or expand the rights of any Buyer Indemnitee under ARTICLE VII hereof. With respect to pay post-Closing adjustments matters relating to disbursements from the Escrow Account, ▇▇▇▇▇ and each Seller each agrees to indemnify against any claim which execute joint written instructions to the Escrow Agent in a manner consistent with the terms and conditions of this Agreement.
(c) For the avoidance of doubt, ▇▇▇▇▇ and each Seller agrees and acknowledges that disbursements may be asserted, pursuant made to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Buyer in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion provisions of this Agreement and the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer Agreement from the Escrow Deposit shall be calculated based upon Account at any time and from time prior to the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryExpiration Date.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Aa) At Shareholder hereby delivers to the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially Agent a certificate in the form of Exhibit 2.3, a portion name of the Merger Consideration Escrow Agent representing 1,500,000 shares of the Buyer's Common Stock (as shall be equal to FIVE HUNDRED THOUSAND ($500,000defined in the Stock Purchase Agreement) DOLLARS (the "Escrow DepositShares') pursuant to Section 2.03 of the Stock Purchase Agreement, the receipt of which the Escrow Agent hereby acknowledges. The Escrow Shares shall be deposited in an account established at the Escrow Agent for receipt of such Escrow Shares (the 'Escrow Account")) and shall be held in such Escrow Account and distributed in accordance with the terms and provisions of this Escrow Agreement.
(b) Any securities, based upon non-cash dividends or other property distributable in respect of or in exchange for any of the valuation described in Section 3.1(a) belowEscrow Shares, whether by way of stock dividends, stock splits or otherwise, shall be delivered by Buyerto the Escrow Agent, on behalf of who shall hold such securities, non-cash dividends or other property in the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee")Escrow Account. The Escrow Deposit Such securities shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by issued in the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion name of the Escrow Deposit as Agent or its nominee and all such securities, cash dividends or other property shall have a value equal to be considered part of the amount by which the Merger Consideration is so reducedEscrow Account for purposes hereof.
(IIc) Buyer shall have the right, in its sole discretion, to direct the Escrow Agent in writing as to the exercise of any voting rights pertaining to the Escrow Shares, and the Escrow Agent shall comply with any such written instructions. In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2absence of such instructions from Buyer, the Escrowee Escrow Agent shall release to Buyer that portion of not vote the Escrow Deposit as shall be equal in value to such indemnificationShares.
(IIId) If no claim for indemnification on The interest of the part Shareholder in the Escrow Account shall not be assignable or transferable, other than by operation of Buyer is outstanding upon the expiration law. Notice of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) such assignment or transfer by operation of law shall be released given to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing DateEscrow Agent and Buyer, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, no such assignment or transfer shall be made)valid until such notice is given. In addition, no such assignment shall be released to terminate Shareholder's obligations under the Seller promptly after resolution Voting Agreement between Shareholder and Buyer of such claim(s)even date herewith.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Ai) At Simultaneously with the Closingexecution and delivery of this Agreement by a Purchaser, pursuant to such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an Escrow Agreement amount representing such Purchaser’s Subscription Amount to be entered into 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 parties substantially in Escrow Agent are referred to herein as the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "“Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"Amount”). The Escrow Deposit 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 6.18, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (A) the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, in accordance with written wire transfer instructions received from such Purchaser; and (B) if 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 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: (A) to the Placement Agent, the fees payable to such Placement Agent, and (B) 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 held deemed to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Deposit shall be held and disbursed Agent: (i) is not responsible for the performance by the Escrowee 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 following: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 indemnify and 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, unless such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) Escrow Agent has acted as legal counsel to the 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 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 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) 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, 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 Seller becomes obligated Escrow Agent shall be uncertain as to remit IHS Stock back to Buyer pursuant its duties or rights hereunder or shall receive instructions with respect to the post-Closing adjustments set forth Escrow Amount or any portion thereunder which, in Section 2.2(b)its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, Escrow Agent shall have the absolute right to suspend all further performance 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 Escrowee shall release to Buyer that portion Placement Agent and all of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) Purchasers, or otherwise. In the event that any controversy arises between the Buyer becomes entitled Company and one or more of the Purchasers or any other party with respect to indemnification pursuant to Section 12.2this Agreement or the Escrow Amount, the Escrowee Escrow Agent shall release not be required to Buyer that portion determine the proper resolution of such controversy or the proper disposition of the Escrow Deposit as 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 equal in value to such indemnificationrelieved of all further obligations and released from all liability hereunder.
(IIIG) If no claim for indemnification on the part The provisions of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to this Section 2.3(a)(i) and (ii)2.1(d) shall be released to the Sellersurvive any termination of this Agreement.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Aa) At the Closing, pursuant (i) the Purchaser shall deposit an amount in cash equal to an $2,718,750 (the “Indemnity Escrow Agreement Amount”) with the Escrow Agent in accordance with Section 2.7 (Transactions to Be Effected at Closing) to be entered into held in an escrow account by the parties substantially in Escrow Agent for the form purpose of Exhibit 2.3, a portion securing indemnification obligations of the Merger Consideration as Seller set forth in Article IX (the “Indemnity Escrow Account”) and (ii) the Purchaser shall be deposit an amount in cash equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS 8,000,000 (the "“Adjustment Escrow Deposit")Amount” and, based upon together with the valuation described Indemnity Escrow Amount, the “Escrow Amounts”) 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 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent 2.8 (the "Escrowee"“Adjustment Escrow Account” and, together with the Indemnity Escrow Account, the “Escrow Accounts”). The Escrow Deposit Escrowed Cash shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, by the Escrow Agent pursuant to Sections 12.2 and 12.4 hereofthe terms of the Escrow Agreement. The Escrow Deposit 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 by solely for the Escrowee purposes and in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion terms of this Agreement and the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedAgreement.
(IIb) In Except as otherwise provided in this Agreement and the event Escrow Agreement, (i) on the date that is twelve (12) months after the Buyer becomes entitled Closing Date (the “Release Date”), all of the Escrowed Cash with respect to indemnification the Indemnity Escrow Account (other than any amounts in respect of the Indemnity Escrow Account to be distributed to the Purchaser pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii2.4(c)) shall be released to the Seller.
Seller pursuant to joint written instructions delivered by the Purchaser and the Seller to the Escrow Agent and (IVii) If any claim(s) for indemnification on all of the part of Buyer is Escrowed Cash with respect to the Adjustment Escrow Account (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less other than any amounts offset for claims in respect of the Adjustment Escrow Account to be distributed to the Purchaser pursuant to Section 2.3(a)(i) and (ii2.8(j)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(sin accordance with Section 2.8(h).
(Vc) The value parties hereto agree that, for Tax reporting purposes, the Seller shall be treated as the owner of the Escrowed Cash, and that all interest on or other taxable income, if any, earned from the investment of the Escrowed Cash pursuant to this Agreement shall be treated for Tax purposes as earned by the Seller until the Escrowed Cash is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto agree that any IHS Stock and all interest, gains and other distributions and income earned on the Escrow Accounts shall be solely for the account of the Seller (and all such amounts shall be distributed to be delivered to Buyer the Seller from the Escrow Deposit shall be calculated based upon Accounts in accordance with the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryEscrow Agreement).
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Aa) At One day following the Closingexecution and delivery of this Agreement by an Investor, pursuant to such Investor shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an Escrow Agreement amount representing such Investor’s Subscription Amount to be entered into paid to a non-interest bearing escrow account of Escrow, LLC (the “Escrow Agent”) (the aggregate amounts received being held in escrow by the parties substantially in Escrow Agent are referred to herein as the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "“Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"Amount”). The Escrow Deposit Agent shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The hold the Escrow Deposit shall be held and disbursed by the Escrowee Amount in escrow in accordance with Section 3.3(b) below.
(b) The Escrow Agent shall continue to hold the followingEscrow 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:
(Ii) In in the event that case of the Seller becomes obligated termination of this Agreement in accordance with Section 6.3, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (A) the Escrow Agent shall return the portion of the Escrow Amount received from each Investor which it then holds, to remit IHS Stock back to Buyer pursuant to each such Investor, in accordance with written wire transfer instructions received from such Investor; and (B) if Escrow Agent has not received written wire transfer instructions from any Investor before the post-Closing adjustments set forth 30th day after such termination date, then the Escrow Agent may, in Section 2.2(b)its sole and absolute discretion, the Escrowee shall release to Buyer either (x) deposit that portion of the Escrow Deposit as Amount to be returned to such Investor in a court of competent jurisdiction on written notice to such Investor, and Escrow Agent shall thereafter have a value equal no further liability with respect to the amount by which the Merger Consideration is so reduced.
such deposited funds, or (IIy) In the event that the Buyer becomes entitled continue to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that hold such portion of the Escrow Deposit Amount pending receipt of written wire transfer instructions from such Investor or an order from a court of competent jurisdiction; OR
(ii) 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 shall be equal in value follows: (A) to the Placement Agent, the fees payable to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing DatePlacement Agent, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses the balance of the Escrowee shall be borne equally by Buyer, on aggregate purchase price to the one hand, and the Seller, on the other handCompany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mad Catz Interactive Inc)
Escrow. (Aa) At Purchaser hereby authorizes and directs the ClosingSecretary of the Company, or such other person designated by the Company, to transfer any Shares forfeited in accordance with Section 2 above from Purchaser to the Company.
(b) To insure the availability for delivery of the 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 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 Agreement, deliver and deposit with the Secretary of the Company, or such other person designated by the Company, the 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 an the Joint Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion Instructions of the Merger Consideration Company and Purchaser attached as shall be equal Exhibit A hereto, until the first to FIVE HUNDRED THOUSAND occur of ($500,000i) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf Purchaser’s forfeiture of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee such Shares in accordance with Section 2 above, (ii) the following:
date on which such Shares cease to be Unvested Shares, or (Iiii) In this Agreement ceasing to be in effect. Promptly following the event 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 Seller becomes obligated to remit IHS Stock back to Buyer escrow agent shall nevertheless retain such certificate or certificates if so required pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release other restrictions imposed pursuant to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedthis Agreement.
(IIc) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2The Company, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owingor its designee, shall not be made), shall be released liable for any act it may do or omit to do with respect to holding the Seller promptly after resolution Shares in escrow and while acting in good faith and in the exercise of such claim(s)its judgment.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Restricted Stock Purchase Agreement (Demand Media Inc.)
Escrow. (Aa) At the Closing, the Purchaser will deposit into an escrow account (the “Escrow Account”) established for such purpose with Computershare Trust Company, N.A. (the “Escrow Agent”) pursuant to an escrow agreement by and among the Purchaser, the Shareholder Representative and the Escrow Agreement Agent, in substantially the form attached hereto as Exhibit 2.8(a) (the “Escrow Agreement”), (i) $15.0 million, consisting of the Stock Merger Consideration valued at the Purchaser Stock Value (the “Escrowed Shares”), by delivery of shares into a book position in the name of the Escrow Agent, and (ii) $1.0 million in cash by wire transfer to be entered into an account designated by the parties substantially Escrow Agent (the “Escrowed Cash”). The Escrowed Shares will be held in the form Escrow Account to act as a source of Exhibit 2.3payment of the indemnification obligations of the Company Shareholders under Article VIII and the Escrowed Cash will be held in the Escrow Account as a source of payment for any Downward Post-Closing NWC Adjustment pursuant to Section 2.11(c).
(b) The Escrowed Shares shall be released from the Escrow Account to the Paying Agent, a for further distribution by the Paying Agent to the Company Shareholders ratably based on their respective Pro Rata Shares in accordance with this Agreement. For all purposes under the Escrow Account, the Escrowed Shares shall be valued at the Purchaser Stock Value. Notwithstanding anything to the contrary herein, no fraction of an Escrowed Share shall be released from the Escrow Account and all releases of Escrowed Shares shall be rounded to the nearest whole Escrowed Share.
(c) Following the determination of the Final NWC pursuant to Section 2.11(a) and, if payable, the payment of the Downward Post-Closing NWC Adjustment pursuant to Section 2.11(c), the Escrow Agent shall release from the Escrow Account to the Paying Agent (for further distribution by the Paying Agent to the Company Shareholders, the holders of Company Options and the holders of Performance Units pursuant to Section 2.10(b)) any remaining portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS Escrowed Cash. On the 15-month anniversary of the Closing Date (the "“Escrow Deposit"Period Expiration Date”), based upon the valuation described Escrow Agent shall release from the Escrow Account to the Paying Agent (for further distribution by the Paying Agent to the Company Shareholders pursuant to Section 2.10(b)(iv)) any remaining portion of the Escrowed Shares minus Escrowed Shares equal in Section 3.1(a) below, shall be value to the sum of the aggregate amount of unsatisfied or disputed claims for Losses specified in Indemnity Claim Notices delivered by Buyerthe Purchaser to the Shareholder Representative on or prior to the Escrow Period Expiration Date (such aggregate amount of unsatisfied or disputed claims for Losses, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"“Pending Claims Amount”). The Escrow Deposit Agent shall be held continue to pay post-Closing adjustments hold the Pending Claims Amount corresponding to each claim for Losses until the final resolution of such claim, at which point, as and to indemnify against any when such claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b)is resolved, the Escrowee Escrow Agent shall release to Buyer that portion shares of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be Purchaser Stock equal in value to the appropriate portion of the Pending Claims Amount to the Paying Agent (for further distribution by the Paying Agent to the Company Shareholders pursuant to Section 2.10(b)(iv)) and/or to the Purchaser, as the case may be, depending upon resolution of such indemnificationclaim.
(IIId) If no claim for indemnification on The Purchaser, the part of Buyer is outstanding upon Company and the expiration of one Shareholder Representative each agree to promptly take commercially reasonable actions (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) including executing and (ii)) shall be released delivering joint written instructions to the Seller.
(IVEscrow Agent) If any claim(s) for indemnification on requested by the part other to effect releases of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) Escrowed Cash and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer Escrowed Shares from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costsAccount, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, in each case in accordance with this Agreement and the Seller, on the other handEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (On Assignment Inc)
Escrow. (Aa) At The Purchaser hereby acknowledges and agrees that the Closing, pursuant to an Escrow Agreement Common Shares are to be entered into by the parties substantially held in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based escrow upon the valuation described terms and conditions set out in Section 3.1(athis paragraph 18.
(b) below, shall be delivered by Buyer, on behalf of The Purchaser hereby appoints the Seller, Company to CoreStates Bank, N.A., act as escrow agent (and the "Escrowee")Company hereby accepts such appointment. The Escrow Deposit Purchaser hereby deposits the Certificates with the Company as escrow agent.
(c) The Common Shares are being deposited in escrow to provide the Purchaser with an incentive to remain employed with the Company. The Company shall release 25,000 of the Common Shares to the Purchaser out of escrow on June 30, 1999. In addition, the Company shall release 6,250 of the Common Shares out of escrow on September 30, 1999 and on the last day of each of the next eleven (11) successive calendar quarters thereafter. Notwithstanding the foregoing, should the Purchaser's employment with the Company be terminated other than for cause or resignation (i) during the first twelve (12) months following Closing, then the Purchaser shall be held entitled to pay post-Closing adjustments and receive out of escrow one third of the Common Shares initially deposited into escrow (i.e. less any Common Shares previously released to indemnify against the Purchaser), or (ii) at any claim which may be assertedtime by an acquiror of legal Control (as defined in the Shareholders Agreement) of the Company, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit then the Purchaser shall be entitled to receive all of the Common Shares out of escrow within three (3) months of such change of Control. If an "Event of Default" (as defined in the Shareholders Agreement) occurs in respect of the Purchaser, the Purchaser shall be deemed to be a "Defaulting Shareholder" under the Shareholders Agreement and shall sell all of the Common Shares, whether or not all or some of the Common Shares are then held and disbursed by the Escrowee in escrow, in accordance with the following:
(I) In Shareholders Agreement. Solely for the event that purposes of such sale under the Seller becomes obligated to remit IHS Stock back to Buyer pursuant Shareholders Agreement, if the Event of Default arises due to the post-Closing adjustments set forth in Section 2.2(b)termination of the Purchaser's employment with the Company, the Escrowee shall release to Buyer that portion Purchaser's Common Shares held in escrow which would have been released from escrow at the end of the Escrow Deposit as calendar quarter in which his or her employment was terminated shall have a value equal be deemed to be so released. Any Common Shares released from escrow shall be delivered to the amount by which the Merger Consideration is so reducedPurchaser in accordance with subparagraph 17(b) above.
(IId) In The Purchaser remains the event that beneficial owner of the Buyer becomes Common Shares held in escrow and shall, subject to the articles of the Company and the Shareholders Agreement, be entitled to indemnification pursuant exercise voting and other rights attaching to Section 12.2such shares and to receive any dividends and distributions attaching thereto, the Escrowee shall release but, subject to Buyer that portion subparagraph 18(c) above, may not sell any escrowed Common Shares or any of the Escrow Deposit as shall be equal Purchaser's rights in value relation to such indemnificationescrowed Common Shares.
(IIIe) If no claim The Company shall not be liable for indemnification on any error of judgement, or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law which it may make, in connection with the part performance of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims its duties as escrow agent pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Sellerthis paragraph 18.
(IVf) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant Any dispute relating to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, this paragraph 18 shall be made), shall be released referred to arbitration in accordance with the Seller promptly after resolution of such claim(s)Shareholders Agreement.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. Pursuant to the Escrow Agreement, the Escrow Agent shall pay to the Buyer from the Escrow Amount (Ai) At the Closing, any amount to be paid to Buyer pursuant to an Section 1.3 arising from the determination of the definitive Closing Working Capital; and (ii) the amount of any indemnification obligation due and payable by Seller pursuant to this Agreement. The parties hereby covenant to direct the Escrow Agent to distribute the Escrow Amount under the Escrow Agreement as follows:
(i) An amount equal to the amount, if any, determined to be entered into by the parties substantially in the form of Exhibit 2.3, a portion due to Buyer upon determination of the Merger Consideration as shall be equal definitive Closing Working Capital pursuant to FIVE HUNDRED THOUSAND Section 1.3 ($500,000) DOLLARS (plus interest earned on said funds from the "Escrow Deposit"Escrow), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf distributed to Buyer within three (3) business days subsequent to the date that the definitive Closing Working Capital is determined pursuant to Section 1.3;
(ii) An amount equal to one-half (1/2) of the SellerEscrow Amount less the amount, if any, determined to CoreStates Bankbe due to Buyer upon determination of the definitive Closing Working Capital pursuant to Section 1.3 (plus interest earned on said funds from the Escrow), N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held distributed to pay post-Seller within three (3) business days subsequent to the date that the definitive Closing adjustments and to indemnify against any claim which may be asserted, Working Capital is determined pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit Section 1.3;
(iii) An amount necessary to satisfy Seller’s indemnification claims under this Agreement, if any, shall be held distributed to Buyer as said claims are finally resolved and disbursed are due and payable by Seller according to the Escrowee indemnification terms of this Agreement;
(iv) All remaining funds in the Escrow on December 24, 2007 (plus interest earned on said funds from the Escrow), less the amount of pending indemnification claims made by Buyer against said funds on or before December 24, 2007 in accordance with the following:provisions of this Agreement, shall be distributed to Seller within three (3) business days subsequent to December 24, 2007; and
(Iv) In Any funds remaining in the event that the Seller becomes obligated Escrow resulting from any pending indemnification claims made by Buyer on or prior to remit IHS Stock back to Buyer pursuant December 24, 2007 shall be distributed to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes party entitled to indemnification pursuant to Section 12.2, such funds (plus interest earned on said funds from the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(IIIEscrow) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after final resolution of the outstanding claim(sapplicable indemnification claim within three (3) and payment in respect thereof, if any is owing, shall be made), shall be released to business days of the Seller promptly after final resolution of such claim(s)the claim in accordance with this Agreement.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Ai) At Purchaser and the ClosingSellers hereby appoint the Escrow Agent to serve in such capacity hereunder. Simultaneously with the execution and delivery of this Agreement, pursuant Purchaser, shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing the Purchase Price, to be paid to an escrow account of the Escrow Agreement to be entered into Agent set forth on Exhibit A attached hereto (the aggregate amounts received being held in escrow by the parties substantially 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 the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS blank (the "Stock Powers") and the Company shall deliver to Escrow Deposit"), based upon Agent the valuation described New Debentures registered in Section 3.1(a) below, shall be delivered by Buyer, on behalf the name of the Seller, Purchaser and the instructions to CoreStates Bank, N.A., as escrow the Company’s transfer agent (Computershare) to deliver the "Escrowee"Converted Shares pursuant to Section 1(b). The Escrow Deposit Agent shall be held hold the Escrow Amount, Debentures, New Debentures and Stock Powers in escrow in accordance with Section 1(g)(ii) and (iii) below. The Company expressly waivers and requirement that the stock powers contain any signature guarantee or other third-party evidence of authenticity, and agrees to pay postaccept the same from the Escrow Agent “as-Closing adjustments is” as delivered to the Escrow Agent by the Sellers.
(ii) The Escrow Agent shall hold the Escrow Amount, the Stock Powers, the Debentures and the New Debentures delivered to indemnify against any claim which may be asserted, the Escrow Agent pursuant to Sections 12.2 Section 1(g)(i) of this Agreement, in escrow in accordance with and 12.4 hereofsubject to this Agreement until the receipt of written instructions signed by the Sellers, the Purchaser and the Company that the conditions to the Closing have been satisfied (the "Release Instructions"). Upon receipt of the Release Instructions, the Escrow Agent shall release to Sellers that part of the Escrow Amount constituting the Purchase Price set forth opposite Sellers’ name on column (7) of the Securities Schedule attached hereto in accordance with written wire transfer instructions received from Sellers, and shall release to Purchaser the New Debenture. The Escrow Deposit Agent shall deliver the Debentures to the Company and the Company will cancel the Purchased Debentures and re-issue certificates for the Remaining Debentures back to the Escrow Agent. Upon notice (the "Delivery Confirmation") from the Escrow Agent that the Escrow Amount, the Debentures, the New Debentures and the Stock Powers have been delivered to the Escrow Agent, the Purchaser together with the Sellers and the Company shall deliver the Release Instructions. If Purchaser fails to deliver the Release Instructions to the Escrow Agent within 3 business days after delivery by the Escrow Agent to Purchaser of the Delivery Confirmation, the Sellers may, at their option, direct the Escrow Agent to deliver to the Sellers the Stock Power and the Debentures and if the Sellers deliver such instruction, contemporaneously with the delivery of the foregoing to the Sellers, the Escrow Agent shall deliver to Purchaser the Escrow Amount. If the Sellers fail to deliver the Release Instructions to the Escrow Agent within 3 business days after the Escrow Agent has delivered the Delivery Confirmation to the Sellers, Purchaser may instruct the Escrow Agent to deliver to the Purchaser the Escrow Amount and if Purchaser delivers such instruction, contemporaneously with the delivery of the foregoing to Purchaser, the Escrow Agent shall deliver to the Sellers the Stock Power and the Debentures.
(iii) Upon delivery of an Exercise Notice to the Sellers, the Purchaser shall deliver a copy of such notice to the Escrow Agent and deliver the Option Price for the Remaining Debenture covered by such Exercise Notice to the Escrow Agent in United States Dollars in immediate available funds within three (3) business days following the Exercise Date. Upon receipt of an Exercise Notice, the Escrow Agent shall submit the Remaining Debentures to the Company and the Company shall re-issue a certificate for the Remaining Debentures covered by the Exercise Notice registered in the name of the Purchaser, free and clear of any claim, pledge, charge, lien and any other encumbrance whatsoever, and re-issue the balance of the Remaining Debentures, if any, in the name of the Sellers. Upon receipt by the Escrow Agent of the Remaining Debentures subject to the Exercise Notice registered in the name of the Purchasers, the Escrow Agent shall release the Remaining Debentures so purchased to the Purchaser and the Option Price to the Sellers. The exercise of the Option shall be applied pro-rata to Sellers according to the outstanding principal amount of Remaining Debentures then held and disbursed by the Escrowee Sellers. Following the Option Period, provided that the Escrow Agent has received no Exercise Notice during such period unless such Exercise Notices were honored in full, the Escrow Agent shall return the balance of the Remaining Debentures not subject to an Exercise Notice to the Sellers.
(iv) It is expressly understood that the Escrow Agent acts hereunder as an accommodation to the Purchaser and the Sellers and as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form of execution of such instruments or for the identity, authority or right of any person executing or depositing the same or for the terms and conditions of any instrument pursuant to which the Escrow Agent or the parties may act.
(v) The Escrow Agent shall no have duties or responsibilities except those set forth in this Agreement and shall incur no liability, other than by its own gross negligence, willful misconduct or fraud, in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be genuine, and the Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the following:
(I) In provisions hereof has been duly authorized to do so. The Purchaser and the event Sellers acknowledge that the Seller becomes obligated Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to remit IHS Stock back be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement and shall not be under any duty to Buyer pursuant give the property held by Escrow Agent hereunder any greater degree of care beyond what Escrow Agent gives its own similar property. The Purchaser and the Sellers hereby jointly and severally agree to indemnify and save the post-Closing adjustments set forth in Section 2.2(b)Escrow Agent harmless from and against any and all loss, damage, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be incurred by the Escrowee shall release to Buyer that portion Escrow Agent (including attorneys' fees) by reason of its acceptance of, and its performance under, this Agreement unless caused by the gross negligence, willful misconduct or fraud of the Escrow Deposit as Agent. Absent the Escrow Agent's gross negligence, willful misconduct or fraud, the Escrow Agent shall have a value equal to be automatically released from all responsibility and liability under this Agreement upon the amount by which Escrow Agent's distribution of the Merger Consideration is so reducedEscrow Amount and the Purchased Preferred Shares and the Purchased Warrants in accordance with the provisions of this Agreement.
(IIvi) In This Agreement sets forth exclusively the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion duties of the Escrow Deposit as Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be equal in value to such indemnificationread into this Agreement.
(IIIvii) If no claim for indemnification The Sellers and the Company acknowledge that Escorw Agent represents the Purchaser on other legal matters and has represented the part Purchaser in connection with this Agreement, and each the Sellers and the Company expressly waive any actual or potential conflict of Buyer is outstanding upon interest which may be caused by such representation or such dual roles of the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the SellerAgent.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(Vviii) The value provisions of this Section 1(g) shall survive any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price termination of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliverythis Agreement.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Securities Purchase Agreement (Axion International Holdings, Inc.)
Escrow. Pledgor shall deposit with Escrow Agent the Pledged shares, along with the aforesaid stock powers (A) At all of which items shall hereinafter be referred to as the Closing"Pledged Documents" including all stock assignments), pursuant to an Escrow Agreement to be entered into held in escrow for future delivery as follows:
a. Escrow Agent shall deliver the Pledged Documents to Pledgee within ten (10) business days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the parties substantially in Note and all periods of time within which to cure such default have expired;
(ii) Pledgee is accelerating the form entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of Exhibit 2.3the Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of such affidavit. If Escrow Agent has not received any protest or objection from Pledgor within ten (10) business days of receipt of such affidavit, the Pledged Documents shall be delivered to the Pledgee. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has received written instructions signed by both Pledgor and Pledgee notifying Escrow Agent of a sale of a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Pledged, Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf Agent may release a portion or all of the Seller, to CoreStates Bank, N.A.Pledged Shares, as escrow agent (provided in such written instruction, and if Escrow Agent is designated to be the "Escrowee"). The recipient of the proceeds from the sale of all or a portion of the Pledged Shares, then Escrow Deposit Agent shall be held to pay post-Closing adjustments and to indemnify against deliver any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee such proceeds received in accordance with the following:such written instructions.
(I) c. In the event that Escrow Agent has not delivered the Seller becomes obligated to remit IHS Stock back to Buyer Pledged Documents pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Datesubparagraph a. above, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, Agent shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.deliver the
Appears in 1 contract
Escrow. (Aa) At Escrow Agent will hold the ▇▇▇▇▇▇▇ Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, pursuant to an Escrow or (ii) the termination of this Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee")accordance with any right hereunder. The Escrow ▇▇▇▇▇▇▇ Money Deposit shall be held non-refundable to pay post-Closing adjustments Purchaser, except as otherwise set forth herein, and to indemnify shall be credited against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereofthe Purchase Price at the Closing. The Escrow All interest earned on the ▇▇▇▇▇▇▇ Money Deposit shall be held paid to the party entitled to the ▇▇▇▇▇▇▇ Money Deposit. In the event the Closing occurs, the ▇▇▇▇▇▇▇ Money Deposit will be released to Seller, and disbursed Purchaser shall receive a credit against the Purchase Price in the amount of the ▇▇▇▇▇▇▇ Money Deposit. In all other instances, Escrow Agent shall not release the ▇▇▇▇▇▇▇ Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Escrowee ▇▇▇▇▇▇▇ Money Deposit as follows: (i) if requested by Seller, then upon Seller’s written demand therefore stating that Purchaser defaulted in the performance of Purchaser’s obligations to close under this Agreement and the facts and circumstances forming the basis of such default and (ii) if requested by Purchaser, then upon Purchaser’s written demand therefore, stating that Seller defaulted in the performance of Seller’s obligations to close under this Agreement and the facts and circumstances forming the basis of such default; provided, that, in neither case shall Escrow Agent release the ▇▇▇▇▇▇▇ Money Deposit until five (5) Business Days following Escrow Agent’s delivery of such written demand to the non-requesting party; provided, further, that if during such five (5) Business Days period, the non-requesting party shall have delivered to Escrow Agent a written dispute to the release of the ▇▇▇▇▇▇▇ Money Deposit, Escrow Agent shall not release the ▇▇▇▇▇▇▇ Money Deposit unless it receives further written direction signed by Seller and Purchaser. If no written dispute is so delivered, Escrow Agent shall disburse the ▇▇▇▇▇▇▇ Money Deposit as directed. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is ▇▇-▇▇▇▇▇▇▇. Harsimus represents that its tax identification number, for purposes of reporting the interest earnings, is ▇▇-▇▇▇▇▇▇▇, and Columbia represents that its tax identification number, for purposes of reporting interest earnings, is ▇▇-▇▇▇▇▇▇▇.
(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the ▇▇▇▇▇▇▇ Money Deposit (the “Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution advice of such claim(s)counsel.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Escrow. (Aa) At the ClosingThe Downpayment and any interest earned thereon, pursuant to an upon Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) belowAgent’s receipt and collection thereof, shall be delivered held in an interest bearing account at Citizens Bank (or at such other commercial bank having an office in Manhattan as Escrow Agent shall select) and, at Seller’s option, will be invested in United States Treasury bills or notes or other short term obligations (approved by Buyerboth parties in their sole discretion) with appropriate maturities prior to the scheduled Closing Date.
(b) Except as otherwise set forth in this Agreement, the interest, if any, earned on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit Downpayment shall be held delivered with the Downpayment to pay post-Closing adjustments and to indemnify against any claim which may be asserted, the person or persons entitled thereto pursuant to Sections 12.2 and 12.4 hereofthe terms of this Article 30. The Escrow Deposit Agent shall not be held and disbursed by responsible for (i) any interest earned on the Escrowee Downpayment except for such interest as is actually earned or (ii) the loss of any interest resulting from the withdrawal of any interest-bearing investment prior to maturity or the date interest is posted on such investment.
(c) Escrow Agent shall deliver the Downpayment in accordance with the following:
(Ii) If Purchaser shall assert that this Agreement shall have been terminated in accordance with the terms and conditions thereof, and that it is entitled to the return of the Downpayment, then Purchaser shall deliver a written notice to Escrow Agent instructing Escrow Agent to deliver the Downpayment to Purchaser. Escrow Agent shall promptly send a copy of such notice to Seller and in the event that within five (5) Business Days of such notice being given to Seller, Seller shall not have (i) delivered a written objection to Escrow Agent or (ii) commenced an action to restrain the release of the Downpayment and served upon Escrow Agent the pleadings in such action, then Escrow Agent shall promptly deliver the Downpayment to Purchaser.
(ii) If Seller shall assert that this Agreement shall have been terminated in accordance with the terms and conditions thereof, and that the Downpayment shall have been forfeited by Purchaser, then Seller shall deliver a written notice to Escrow Agent instructing Escrow Agent to deliver the Downpayment to Seller. Escrow Agent shall promptly send a copy of such notice to Purchaser and in the event that within five (5) Business Days of such notice being given to Purchaser, Purchaser shall not have (i) delivered a written objection to Escrow Agent or (ii) commenced an action to restrain the release of the Downpayment and served upon Escrow Agent the pleadings in such action, then the Escrow Agent shall promptly deliver the Downpayment to Seller.
(iii) If the Closing under this Agreement shall occur, Seller and Purchaser shall deliver jointly a written notice to Escrow Agent at such Closing instructing Escrow Agent to deliver the Downpayment to Seller (or as Seller may direct in writing) and, upon receipt of such notice, Escrow Agent shall do so.
(iv) Upon its receipt of any objection, notice or demand for the Downpayment delivered by Seller or Purchaser, Escrow Agent shall promptly deliver a copy thereof to the other party.
(d) In the event any disagreement or dispute shall arise between or among any of the parties hereto and/or any other persons resulting in adverse claims and demands being made for the Downpayment, then, at Escrow Agent’s option (i) Escrow Agent may refuse to comply with any claims or demands on it and continue to hold the Downpayment until (a) Escrow Agent receives written notice signed by Seller, Purchaser and any other person who may have asserted a claim to or made a demand for the Downpayment directing the disbursement of the Downpayment, in which event Escrow Agent shall then disburse the Downpayment in accordance with said direction, or (b) Escrow Agent receives a certified copy of a final and non- appealable judgment of a court of competent jurisdiction directing the disbursement of the Downpayment, in which event Escrow Agent shall then disburse the Downpayment in accordance with said direction; or (ii) in the event Escrow Agent shall receive a written notice advising that a litigation over entitlement to the Downpayment has been commenced, Escrow Agent may deposit the Downpayment with the clerk of the court in which said litigation is pending; or (iii) Escrow Agent may deposit the Downpayment in a court of competent jurisdiction by the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller becomes obligated and Purchaser is the losing party.
(e) Escrow Agent shall not be or become liable in any way or to remit IHS Stock back any person for its refusal to Buyer comply with adverse claims and demands being made for the Downpayment. Escrow Agent shall not be responsible for any act or failure to act on its part nor shall it have any liability under this Article 30 or in connection herewith except in the case of its own willful misconduct or gross negligence. Escrow Agent shall be automatically released from all responsibility and liability hereunder upon Escrow Agent’s delivery or deposit of the Downpayment in accordance with the provisions of this Article 30.
(f) It is expressly understood that Escrow Agent acts hereunder as an accommodation to Seller and Purchaser 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 Escrow Agent or the post-Closing adjustments parties may act.
(g) The duties of Escrow Agent are purely ministerial. The Escrow Agent shall not have any duties or responsibilities except those set forth in Section 2.2(b)this Article 30 and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by Escrow Agent to be genuine, and Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the Escrowee shall release provisions hereof has been duly authorized to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduceddo so.
(IIh) In Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon and by and with the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion advice of the Escrow Deposit as counsel which may be selected by it and shall be equal fully protected in value to so acting or refraining from acting upon the advice of such indemnificationcounsel.
(IIIi) If no claim for indemnification on Purchaser and Seller hereby jointly and severally agree to indemnify and save Escrow Agent harmless from any and all loss, damage, claims, liabilities, judgments and other cost and expense of every kind and nature which may be incurred by Escrow Agent arising out of its acting as Escrow Agent hereunder (including, without limitation, reasonable attorneys’ fees and disbursements) except in the part case of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Sellerits own willful misconduct or gross negligence.
(IVj) If The parties acknowledge that Escrow Agent is acting, and shall continue to act, as counsel to Seller in connection with this agreement and other matters. The parties agree that Escrow Agent or any claim(s) member or employee of Escrow Agent shall be permitted to act as counsel for indemnification on Seller in any dispute or question as to the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution disbursement of the outstanding claim(s) and payment in respect thereof, if Downpayment or any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s)other matter arising hereunder.
(Vk) The value provisions of any IHS Stock this Article 30 shall survive the Closing or the termination of this Agreement. The provisions of this Article 30 are intended to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (supersede that certain escrow agreement, dated June 30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer2011, on the one hand, and the among Seller, on the other handPurchaser and Escrow Agent, which escrow agreement is hereby terminated.
Appears in 1 contract
Sources: Contract of Sale
Escrow. (Ai) At Simultaneously with the Closingexecution and delivery of this Agreement by a Purchaser, pursuant to such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an Escrow Agreement amount representing such Purchaser’s Subscription Amount to be entered into 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 parties substantially in Escrow Agent are referred to herein as the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "“Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"Amount”). The Escrow Deposit 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) the termination of this Agreement in accordance with Section 6.18, 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) 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 held set forth in such instructions), (2) to pay post-Closing adjustments the Company’s Counsel, the fees payable to such Company Counsel, and (3) the balance of the aggregate purchase price to indemnify against any claim the Company.
(iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which may shall be asserted, pursuant deemed to Sections 12.2 and 12.4 hereof. be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Deposit shall be held and disbursed Agent: (i) is not responsible for the performance by the Escrowee 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 following:written instructions from the Company or the Placement Agent (or the Purchaser in accordance with Section 2.1(d)(ii)(A)), each of the responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company hereby indemnifies and holds harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, unless such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. The Purchasers hereby expressly consent to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall 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 Seller becomes obligated Escrow Agent shall be uncertain as to remit IHS Stock back to Buyer pursuant its duties or rights hereunder or shall receive instructions with respect to the post-Closing adjustments set forth Escrow Amount or any portion thereunder which, in Section 2.2(b)its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrowee Escrow Agent shall release have the absolute right to Buyer that portion 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 Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) Purchasers, or otherwise. In the event that any controversy arises between the Buyer becomes entitled Company and one or more of the Purchasers or any other party with respect to indemnification pursuant to Section 12.2this Agreement or the Escrow Amount, the Escrowee Escrow Agent shall release not be required to Buyer that portion determine the proper resolution of such controversy or the proper disposition of the Escrow Deposit as 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 equal in value to such indemnificationrelieved of all further obligations and released from all liability hereunder.
(IIIG) If no claim for indemnification on the part The provisions of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to this Section 2.3(a)(i) and (ii)2.1(d) shall be released to the Sellersurvive any termination of this Agreement.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wonder Auto Technology, Inc)
Escrow. (A) At Immediately upon execution of this Agreement by Purchaser and Seller, an original of this Agreement executed by Seller and Purchaser shall be deposited with Escrow Holder, and the Closing, pursuant to an Escrow Agreement to will be entered into by the parties substantially in the form of Exhibit 2.3, a portion opened as of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS date that this Agreement is so deposited with Escrow Holder (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "EscroweeOPENING OF ESCROW"). The This Agreement, together with such further instructions as the parties shall provide to Escrow Deposit Holder by written agreement (including, without limitation, Escrow Holder's general provisions in the modified form set forth in 37 39 Exhibit J attached hereto), shall constitute the Escrow instructions. If any requirements relating to the duties or obligations of Escrow Holder hereunder are not acceptable to Escrow Holder, or if Escrow Holder requires additional instructions, Purchaser and Seller agree to make such deletions, substitutions and additions hereto and to execute any reasonably separate or additional Escrow instructions (including the general instructions in the modified form attached hereto as Exhibit J) required by Escrow Holder as counsel for Purchaser and Seller shall mutually approve, which additional instructions shall not substantially alter the terms of this Agreement unless otherwise expressly agreed to by Seller and Purchaser. In the event of any conflict or inconsistency between the terms of any such Escrow instructions and the terms of this Agreement, the terms and provisions of this Agreement shall govern and prevail, unless the terms and provisions of the additional instructions clearly state that they amend and supersede the terms of this Agreement. Purchaser and Seller also authorize their respective attorneys to execute and deliver to Escrow Holder any supplementary instructions as may be necessary or convenient to close the transaction contemplated hereby; provided, such supplementary instructions shall be held consistent with and merely supplement this Agreement and shall not in any way modify, amend or supersede this Agreement. Escrow Holder shall execute this Agreement below in order to pay post-Closing adjustments evidence Escrow Holder's receipt of the same and Escrow Holder's agreement to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee act as "escrow holder" in accordance with the following:
(I) In the event that the terms and provisions hereof. DEPOSITS INTO ESCROW. Seller becomes obligated shall make Seller's deposits into Escrow in accordance with Section 11. Purchaser shall make Purchaser's deposits into Escrow in accordance with Section 12. Escrow Holder is hereby authorized to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of close the Escrow Deposit as shall have a value equal only if and when: (i) Escrow Holder has received all items to the amount be delivered by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification Seller and Purchaser pursuant to Section 12.211 and Section 12, respectively, (ii) Escrow Holder is prepared to immediately disburse the Escrowee shall release to Buyer that portion proceeds of the Escrow Deposit as shall be equal Purchase Price due to Seller by federal wire transfer of immediately available funds in value accordance with the separate disbursement instructions from Seller; and (iii) the Title Company has irrevocably committed to such indemnification.
(III) If no claim for indemnification on issue the part of Buyer is outstanding Title Policy to Purchaser upon the expiration Closing. ESCROW HOLDER'S CLOSING DISBURSEMENTS. Upon the Closing, Escrow Holder shall: DELIVERIES TO PURCHASER. Deliver to Purchaser: (i) the Grant Deed by causing the Grant Deed to be recorded in the Official Records and immediately upon recording delivering to Purchaser and to Seller a conformed copy of one the Grant Deed as recorded; (1ii) year following the Closing Date, any remaining Escrow Deposit Bill ▇▇ Sale; (less any amounts offset for claims pursuant to Section 2.3(a)(iiii) the Certificate of Non-Foreign Status and California Form 590; (iv) the General Assignment executed in counterpart by Seller; and (ii)v) shall be released to the Assignment of 38 40 Leases executed by Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Carramerica Realty Corp)
Escrow. B▇▇▇▇ ▇▇▇▇▇ Ciklin L▇▇▇▇▇ Martens M▇▇▇▇▇ & O'▇▇▇▇▇▇▇ (Athe “Escrow Agent”) At shall hold the ClosingDeposit and Purchaser’s and Seller’s Documents in escrow, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion dispose of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the pro rate expenses and deliver Purchaser’s and Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee ’s Documents only in accordance with the followingfollowing provisions:
(Ia) In Escrow Agent shall deliver the event that Deposit to Seller or Purchaser, as the Seller becomes obligated case may be, as follows:
(i) to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b)Seller, the Escrowee shall release to Buyer that portion upon completion of the Escrow Deposit Closing, to be applied against the Purchase Price of the Property as Seller shall have a value equal to the amount by which the Merger Consideration is so reduced.direct; or
(IIii) In the event to Seller, after receipt of Seller’s demand in which Seller certifies either that the Buyer becomes entitled to indemnification pursuant to Section 12.2(A) Purchaser has materially defaulted under this Agreement, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
or (B) The coststhis Agreement has been otherwise terminated or cancelled, fees and expenses Seller is thereby entitled to receive the Deposit; but Escrow Agent shall not honor Seller’s demand until more than ten (10) days after Escrow Agent has given a copy of such demand to Purchaser in accordance with Section 18(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 Purchaser certifies either that (A) Seller has materially defaulted under this Agreement, or (B) this Agreement has been otherwise terminated or cancelled, and Purchaser is thereby entitled to receive the Deposit; 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 Seller in accordance with Section 18(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon such delivery of the Escrowee Deposit, Escrow Agent shall be borne equally relieved of all liability hereunder and with respect to the Deposit. Escrow Agent shall deliver the Deposit by Buyer, on a bank wire transfer of immediately available funds to an account designated by the one hand, and party entitled to the Seller, on the other handDeposit.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Escrow. (A) At the Closing, pursuant to an Escrow Notwithstanding any provision of this Agreement to be entered into by the parties substantially contrary, (a) except as set forth in Section 9.5(b), the form of Exhibit 2.3Purchaser Indemnitees shall have recourse only against the undisbursed Indemnification Escrow Amount and the income, a portion of interest, increments and gains earned on the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS Indemnification Escrow Amount (the "Escrow Deposit")“Indemnification Escrowed Funds”) with respect to any Damages, based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
terms of the Escrow Agreement and (Ib) In in no event will Seller be liable for Damages or otherwise for any matter in any way relating to this Agreement or the event that transactions contemplated hereby other than out of the undisbursed 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 warranties of the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to and the post-Closing adjustments Company set forth in Section 2.2(bSections 3.4 (Authority; Authorization; Enforceability), the Escrowee shall release to Buyer that portion 3.7 (Brokers), 3.8 (Capitalization of the Escrow Deposit as shall have a value equal Acquired Companies) and 3.9 (Rights; Warrants or Options) and any claims for intentional fraud, or (ii) payment of any Purchase Price Decrease (if any) out of the Purchase Price Escrowed Funds pursuant to Section 2.4(c)(iii). To the amount by which the Merger Consideration extent that any Purchaser Indemnitee is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification from the Seller pursuant to this Article 9, including out of the Indemnification Escrowed Funds under this Section 9.5, such Purchaser Indemnitee shall first recover any Damages from the undisbursed Indemnification Escrowed Funds prior to pursuing recovery directly from the Seller, except (i) for claims for indemnification for Damages pursuant to Section 12.2, the Escrowee shall release to Buyer that portion 9.2(a)(i) for breaches or inaccuracies of the Escrow Deposit as shall be equal representations and warranties of the Seller and the Company set forth in value to such indemnification.
Sections 3.4 (IIIAuthority; Authorization; Enforceability), 3.7 (Brokers), 3.8 (Capitalization of the Acquired Companies) If no claim and 3.9 (Rights; Warrants or Options) and any claims for indemnification on the part intentional fraud, or (ii) for payment of Buyer is outstanding upon the expiration of one any Purchase Price Decrease (1if any) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s2.4(c)(iii).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Stock Purchase Agreement (Rti International Metals Inc)
Escrow. (Aa) At the Closing, pursuant (i) Purchaser shall hold in escrow the Escrow Amount to an Escrow Agreement satisfy any claims made by Purchaser in respect of (A) the Debt Adjustment, and (B) any amounts alleged to be entered into due to Purchaser by the parties substantially Purchaser under Article 8 of this Agreement ("Claimed Amount") in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in accordance with Section 3.1(a1.7(d) below, and Purchaser shall be delivered by Buyer, on behalf deliver to the Shareholder Agent a stock certificate representing the Pledged Stock issued in the name of the Seller, Shareholder Agent to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee hold only in accordance with the following:Pledge Agreement. Purchaser shall not be required to segregate the Escrow Amount from any of its other funds and may invest the Escrow Amount in any manner Purchaser may desire.
(Ib) On the Debt Adjustment Date, Purchaser shall reduce the Undisputed Escrow Amount by the Undisputed Debt Adjustment, if any, as provided in Section 1.5 hereof and the remaining balance of the Escrow Amount after such reduction and other distributions provided for herein shall be referred to as the "Adjusted Escrow Amount".
(c) Purchaser shall be entitled to continue to hold Claimed Amounts not yet finally resolved in accordance with Section 1.7(d) and Article 8 hereof and shall be entitled to distribute to Purchaser free from the escrow provisions of this Agreement any Claimed Amount finally resolved in accordance with Section 1.7(d) and Article 8 hereof. Purchaser shall pay to the Shareholders in accordance with the Shareholder Percentages to the extent such funds have not otherwise been distributed as provided herein: (i) on the Six Month Anniversary Date, 50% of the excess, if any, of the Adjusted Escrow Amount over the Disputed Debt Adjustment on such Six Month Anniversary Date; (ii) on the Anniversary Date, 25% of excess, if any, of the Adjusted Escrow Amount over the Disputed Debt Adjustment on the Anniversary Date; and (iii) on the Eighteen Month Anniversary Date, the remainder of the excess of the Adjusted Escrow Amount over the Disputed Debt Adjustment on the Eighteen Month Anniversary Date. Any amounts paid to the Shareholders from the Escrow Amount shall earn simple interest compounded monthly at a per annum rate equal to the average rate per annum quoted for one year jumbo certificates of deposit by major banks in New York, New York as quoted in the southwest edition of THE WALL STREET JOURNAL on the first and last day of each release period payable on the date upon which such Escrow Amount is distributed to such Shareholders. In the event that of a failure by Purchaser to make a scheduled payment from the Seller becomes obligated Escrow Amount according to remit IHS Stock back Section 1.7 hereof or the failure by the Shareholders to Buyer pursuant make a payment to the post-Closing adjustments set forth in Purchaser according to Section 2.2(b)1.5(a)(ii) hereof within 5 days, the Escrowee non-paying party shall release be subject to Buyer that portion a one- time penalty of 10% of the amount not paid plus all collection costs, including reasonable attorney's fees.
(d) At any time on or before the Eighteen Month Anniversary Date, Purchaser may give the Shareholder Agent written notice of a claim (a "Notice of Claim") for which Purchaser is seeking indemnification under Article 8 of this Agreement from the Escrow Amount stating the dollar amount of the Escrow Deposit Funds claimed as a result of Purchaser's damages thereof (the "Claimed Amount"). Within 10 Business Days after a Notice of Claim is given by Purchaser to the Shareholder Agent, the Shareholder Agent shall have a value equal the right to file with Purchaser written notice that the Shareholders intend to contest Purchaser's claim. If, within such 10 Business Day period, Purchaser does not receive such notice from the Shareholder Agent or receives notice from the Shareholder Agent that such claim is uncontested, Purchaser may reduce the Escrow Amount by the Claimed Amount and thereafter Purchaser shall own such funds free from the escrow provisions hereunder. If, however, within such 10 Business Day period, Purchaser shall receive notice from the Shareholder Agent of the intention of the Shareholders to contest Purchaser's Notice of Claim and the underlying claim with respect to the amount by which Escrow Funds (a "Contested Claim"), then Purchaser shall continue to hold the Merger Consideration is so reduced.
Claimed Amount until the earliest to occur of: (IIi) In receipt of written notice from the event that Shareholder Agent consenting to the Buyer becomes entitled release of the Claimed Amount to indemnification Purchaser; (ii) receipt of a written final decision of the Arbitration Panel pursuant to Section 12.2, the Escrowee shall release to Buyer that portion 9.9 directing disposition of the Escrow Deposit as shall be equal in value to such indemnification.
Claimed Amount after Arbitration; or (IIIiii) If no claim for indemnification on the part receipt of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution a written agreement of the outstanding claim(sShareholder Agent and Purchaser, that (A) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
Purchaser or (B) The costs, fees and expenses the Shareholders are entitled to all or part of the Escrowee Claimed Amount. Thereupon, Purchaser shall deliver to the proper party (which may include Purchaser) the Claimed Amount in accordance with clause (i), (ii) or (iii) above. Any Contested Claim shall be borne equally by Buyer, on the one hand, submitted to Arbitration if Purchaser and the Seller, on Shareholder Agent are unable to resolve such dispute within 30 days of the other handreceipt by Purchaser of a Contested Claim unless Purchaser and the Shareholder Agent mutually agree in writing to extend such period.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sa Telecommunications Inc /De/)
Escrow. At TOTAL’s expense, AMYRIS will deposit (Aon the timing specified below) At the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, with a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as mutually agreed Third Party escrow agent (the "Escrowee"“Escrow Agent”). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 one or more escrow agreements entered by such Escrow Agent, AMYRIS and 12.4 hereof. The Escrow Deposit shall be held TOTAL the following (collectively, the “Escrowed Materials” and disbursed by the Escrowee in accordance with the following:each escrowed Strain, a “Banked Strain”):
(Ia) In Continuing until the event that earliest of (1) the Seller becomes obligated twentieth anniversary of the Effective Date, (2) the date six (6) months after the date on which TOTAL has the right to remit IHS Stock back to Buyer pursuant to practice the post-Closing adjustments license set forth in Section 2.2(b2.A(i)(b), and (3) the Escrowee achievement of a Successful Commercial Transfer, AMYRIS shall release to Buyer that portion 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”). The Initial Package shall be escrowed no later than within ninety (90) days of the Escrow Deposit as shall have a value equal to Effective Date, and at least semi-annually thereafter until the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion occurrence of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part earliest of Buyer is outstanding upon the expiration of one clauses (1) year following the Closing Date, any remaining Escrow Deposit - (less any amounts offset for claims pursuant to 3) of this Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made2.D(iii)(a), AMYRIS shall be released update the Initial Package to reflect the Seller promptly after resolution then current process for the Manufacture of such claim(sLicensed Products using the then current Intermediate Strain(s).
(Vb) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the No later than thirty (30) business day period immediately preceding days after the date 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, the documentation specified on Exhibit A.
(c) TOTAL may, from time to time, obtain access to the Escrowed Materials (at the location of the Escrow Agent) for audit purposes, i.e. to verify that the Escrowed Materials have been properly submitted and stored (provided that if AMYRIS requests, TOTAL’s representative may be accompanied by AMYRIS’ representative during such audit), and upon request of TOTAL and at TOTAL’s expense, AMYRIS shall cause the Escrowed Materials to be sent to an independent laboratory reasonably agreed to by the Parties to allow testing and to evidence that the Banked Strains remain viable and continue to produce farnesene at expected yields, in which is two (2) days before the date case such laboratory shall be considered a Strain Recipient for purposes of such deliverythis Agreement.
(Bd) The costs, fees and expenses TOTAL will have the right to a release of the Escrowee 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 borne equally by Buyerresponsible for maintaining the Strains and information that were the subject of the Successful Commercial Transfer. Notwithstanding anything to the contrary in this Agreement, on under no circumstances shall TOTAL receive more than an aggregate of fourteen (14) Banked Strains.
(f) Any dispute between the one handParties 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 the Seller, on the other hand.D.
Appears in 1 contract
Sources: License Agreement (Amyris, Inc.)
Escrow. Concurrently with the execution and delivery of this Agreement, Buyer and Seller shall jointly open an escrow (A“Escrow”) At for this purchase and sale transaction with Chicago Title Insurance Company, at its office located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ATTN: ▇▇▇▇▇▇ ▇▇▇▇ (“Title Company”), which shall act as the Closingescrow holder for this transaction. As used herein, pursuant the term “Escrow Holder” shall mean and refer to an Title Company acting in its capacity as the administrator of the Escrow Agreement and any applicable escrow accounts relating to the purchase and sale transaction contemplated by this Agreement, and any other references to Title Company shall mean and refer to Title Company acting in its capacity as the issuer of the Owner’s Policy. Seller and Buyer shall also execute and deliver to Escrow Holder and Title Company such additional or supplemental escrow, title and closing instructions as may be necessary or convenient from time to time prior to the Closing to implement the terms of this Agreement. Seller and Buyer agree that: (a) the duties of Escrow Holder are only as herein specifically provided and Escrow Holder shall incur no liability whatsoever except for its own willful misconduct or gross negligence; (b) in the performance of its duties hereunder, Escrow Holder shall be entitled to rely upon any document, instrument or signature believed by it to be entered into genuine and signed by the parties substantially in the form of Exhibit 2.3, a portion either of the Merger Consideration as shall be equal other parties hereto or their successors; (c) Escrow Holder may assume that any person purporting to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf give any notice of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee instructions in accordance with the following:
provisions hereof has been duly authorized to do so; (Id) In the event that the Escrow Holder shall not be bound by any modification, cancellation or rescission of this Agreement unless in writing and signed by Escrow Holder, Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth and Buyer; (e) except as otherwise provided in Section 2.2(b4.4(b), the Escrowee Seller and Buyer shall release to Buyer that portion of the jointly and severally reimburse and indemnify Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2Holder for, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal and hold it harmless against, any and all loss, liability, costs or expenses in value to such indemnification.
(III) If no claim for indemnification connection herewith, including attorneys’ fees and disbursements, incurred without willful misconduct or gross negligence on the part of Buyer is outstanding upon Escrow Holder arising out of or in connection with its acceptance of, or the expiration performance of one (1) year following its duties and obligations under, this Agreement, as well as the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees costs and expenses of defending against any claim or liability arising out of or relating to this Agreement; (f) each of Seller and Buyer hereby releases Escrow Holder from any act done or omitted to be done by Escrow Holder in good faith in the Escrowee shall be borne equally performance of its duties hereunder; and (g) Escrow Holder may resign upon ten (10) days written notice to Seller and Buyer. If a successor Escrow Holder is not appointed by BuyerSeller and Buyer within such ten (10) day period, on the one hand, and the Seller, on the other handEscrow Holder may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Escrow. (a) scruz-net Escrow Shares shall be placed with an escrow agent, satisfactory to NCI and a Representative for a period beginning on the Closing Date and ending on the Escrow Termination Date, to be disbursed solely upon the joint signatures of NCI and the Representative, all as set forth below. Disbursements from the escrow shall be made for the payment of amounts, if any, to satisfy the indemnification rights of NCI pursuant to Section 12 hereof.
(b) The scruz-net Escrow Shares shall be disbursed during the term hereof at any time or from time to time, whenever NCI shall give a Representative a Notice of Claim. Such Notice of Claim must be for a specified amount.
(i) The Representative may give NCI a written notice ("Notice of Objection") (A) At the Closingattaching a copy of such Notice of Claim, pursuant to an Escrow Agreement to be entered into by the parties substantially (B) stating that, in the form good faith opinion of Exhibit 2.3the Representatives, a the claim described in such Notice of Claim is invalid (either in whole or in specified party) under the terms of Section 12 hereof, (C) giving the reasons for the alleged invalidity, and (D) stating that, based on such alleged invalidity, the Representatives object to the payment of any portion of the Merger Consideration scruz-net Escrow Shares to the requesting party on account thereof. In the event that a Notice of Objection alleges that a Notice of Claim is only partially invalid, the Representatives, within thirty (30) days of the receipt of such Notice of Claim, agree to pay over to NCI that portion of the amounts specified in such Notice of Claim as shall be equal to FIVE HUNDRED THOUSAND which no objection is made. The Representatives are not required to agree to make any payments to NCI in respect of a Notice of Claim that has been objected to in a Notice of Objection given to the Representatives as aforesaid except ($500,000X) DOLLARS as provided in the immediately preceding sentence, or (Y) in accordance with an order of any arbitration panel initiated by any of the "Escrow Deposit"), based upon the valuation described in Section 3.1(aparties hereto pursuant to paragraph (ii) below, shall be delivered by Buyer, on behalf .
(ii) NCI and the Representatives agree to submit to final and binding arbitration any and all disputes the Representatives have specified in a Notice of Objection or NCI has specified in a Notice of Claim to which the Seller, Representatives have not responded within thirty (30) days of receipt of such Notice of Claim. Any such dispute subject to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee arbitration in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth JAMS Rules as provided in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced12 hereof.
(IIc) In The escrow shall be terminated on the event Escrow Termination Date; provided, however, that the Buyer becomes entitled to escrow may continue beyond such date if NCI has asserted indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one handclaims, and the Seller, on the other handany such claims remain unsatisfied.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netsource Communications Inc)
Escrow. (Aa) At Promptly following the execution of this Agreement, the License Agreement and the Escrow Agreement, (i) the Purchaser shall deliver or cause to be delivered to the Escrow Agent the Purchase Price and the Upfront Payment (the “Escrow Cash”); and (ii) the Company shall deliver or cause to be delivered to the Escrow Agent a copy of the irrevocable instructions to the Depositary (the “ADS Instructions”), instructing the Depositary to deliver the ADSs to be purchased by the Purchaser hereunder in book entry form, registered in the name of the Purchaser, subject to and at the Closing, pursuant to an Escrow Agreement in each case to be entered into held by the parties substantially Escrow Agent in trust until the earlier of the Closing and the termination of this Agreement in accordance with its terms. In the event of the Closing or the termination of this Agreement in accordance with its terms (whichever is earlier), the Escrow Agent shall:
(i) in the form case of Exhibit 2.3Closing, a portion (y) release the Escrow Cash to the Company; and (z) subject to satisfaction of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"conditions set forth in Section 2.2(b)(ii), based upon release the valuation described in Section 3.1(a) belowADS Instructions to the Depositary, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee all in accordance with the followingterms of this Agreement and the Escrow Agreement. The Company undertakes to use its best commercial efforts to cause the Depositary to issue the ADSs to be purchased by the Purchaser hereunder promptly after the Depositary’s receipt of the ADS Instructions; and
(ii) in the case of termination of this Agreement, (y) release the Escrow Cash to the Purchaser; and (z) return the ADS Instructions to the Company.
(b) The Company and Purchaser shall cooperate in order to ensure the Closing promptly following receipt of the IIA Consent, as follows:
(Ii) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal Cash to the amount Company from escrow promptly following receipt of the IIA Consent, pursuant to delivery to the Escrow Agent of the Joint Release relating to the release of the Escrow Cash to the Company;
(ii) upon delivery to the Escrow Agent of the Joint Release relating to the release of the Escrow Cash to the Company, the Company shall cause to be deposited with the custodian bank of the Depositary in Israel a share certificate (the “Share Certificate”) representing a number of Ordinary Shares underlying the ADSs being purchased by which the Merger Consideration is so reducedPurchaser hereunder (the “Underlying Shares”), and thereafter the Company shall provide to the Purchaser confirmation from the Depositary or the custodian bank that the Share Certificate has been deposited with the custodian bank; and
(iii) promptly following the Company’s receipt of the Escrow Cash in the Bank Account and such funds being immediately available, unrestricted and fully accessible to the Company without any limitations imposed by the bank or any third party, the release by the Escrow Agent of the ADS Instructions to the Depositary, pursuant to delivery of the Joint Release relating to the release of the ADS Instructions to the Depositary in accordance with the Escrow Agreement.
(IIc) In As of the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2date hereof, the Escrowee shall Company and Purchaser have each:
(i) signed joint releases relating to (y) the release to Buyer that portion of the Escrow Deposit as shall be equal Cash to the Company following receipt of the IIA Consent; and (z) release of the ADS Instructions to the Depositary following the deposit of the Escrow Cash in value the Bank Account and such funds being immediately available, unrestricted and fully accessible to the Company (each, a “Joint Release”) and have deposited their respective signature pages thereto with their respective legal counsel, the law firm of Arnon, ▇▇▇▇▇▇-▇▇▇▇, in the case of the Company, and the law firm of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇, in the case of the Purchaser, and
(ii) given irrevocable instructions to such indemnification.
respective counsel to deliver the respective Joint Release to the Escrow Agent immediately upon confirmation by such counsel that (IIIx) If no claim for indemnification on the part IIA Consent has been obtained (in the case of Buyer is outstanding upon the expiration release of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant Cash to Section 2.3(a)(ithe Company) and (ii)y) shall be released the Escrow Cash has been deposited in the Bank Account and such funds are immediately available, unrestricted and fully accessible to the Seller.
Company (IV) If any claim(s) for indemnification on in the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution case of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released release of the ADS Instructions to the Seller promptly after resolution of such claim(sDepositary).
(Vd) The value of any IHS Stock For as long as the ADS Instructions are held in escrow and unless and until such time as the ADSs being purchased by the Purchaser hereunder are delivered in book entry form at the Depositary, subject to and at the Closing, (i) the Underlying Shares and/or ADSs subject to the ADS Instructions shall not be deemed issued and outstanding Ordinary Shares and/or ADSs and (ii) the Purchaser shall not be deemed to be delivered the owner of the Underlying Shares and/or the ADSs subject to Buyer from the ADS Instructions and shall not be entitled to (x) exercise any voting rights with respect to the Underlying Shares and/or ADSs subject to the ADS Instructions, (y) receive dividends and other distributions on account of the Underlying Shares and/or ADSs subject to the ADS Instructions; or (z) any other rights with respect to the Underlying Shares and/or ADSs subject to the ADS Instructions other than as set forth in this Agreement and the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryAgreement.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (A) At 22.1 Escrow Agent shall hold and disburse the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Downpayment in accordance with the followingfollowing provisions:
22.1.1 Escrow Agent shall have the right, but not the obligation, to invest the Downpayment in savings accounts, treasury bills, certificates of deposit and/or in other money market instruments, or in funds investing in any of the foregoing, and shall not be liable for any losses suffered in connection with any such investment.
22.1.2 If the Closing occurs, then Escrow Agent shall deliver the Downpayment to Seller.
22.1.3 If Escrow Agent receives a notice signed by Purchaser or Seller (Ithe “Noticing Party”) In the event stating that this Agreement has been canceled or terminated and that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant Noticing Party is entitled to the postDownpayment, or that the other party hereto (the “Non-Closing adjustments Noticing Party”) has defaulted in the performance of its obligations hereunder, Escrow Agent shall deliver a copy of such notice to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Downpayment by notice of objection delivered to and received by Escrow Agent ten (10) Business Days after the date of Escrow Agent’s delivery of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Downpayment to the Noticing Party. If Escrow Agent shall have received a notice of objection from the Non-Noticing Party within the time herein prescribed, Escrow Agent shall, at its sole option, either (i) deliver to a court of competent jurisdiction the Downpayment; or (ii) retain the Downpayment until one of the following events shall have occurred: (a) the Non-Noticing Party shall have failed to commence an action in a court of competent jurisdiction against the Noticing Party to resolve why the Noticing Party shall not be entitled to the payment of the Downpayment within thirty (30) days after delivery of the Noticing Party’s notice, by serving a summons and complaint on the Noticing Party and delivering to Escrow Agent a copy thereof, together with an affidavit of service within such thirty (30) day period, in which event Escrow Agent shall pay over the Downpayment to the Noticing Party; (b) there shall have been served upon Escrow Agent an order or judgment duly entered in a court of competent jurisdiction setting forth the manner in which the Downpayment is to be paid out and delivered, in which event Escrow Agent shall deliver the Downpayment as set forth in such order or judgment; or (c) Seller and Purchaser shall have delivered to Escrow Agent a joint statement executed by both Seller and Purchaser setting forth the manner in which the Downpayment is to be paid out and delivered, in which event Escrow Agent shall deliver the Downpayment as set forth in such statement. Escrow Agent shall not be or become liable in any way to any person for its refusal to comply with any such requests or demands by Seller and Purchaser until and unless it has received a direction of the nature described above.
22.2 Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Seller and/or Purchaser, or from Seller and/or Purchaser to Escrow Agent, provided for in this Section 22 shall be addressed to the party to receive such notice at its notice address set forth in Section 2.2(b14 above (with copies to be similarly sent to the additional persons therein indicated).
22.3 Notwithstanding the foregoing, if Escrow Agent shall have received a notice of objection as provided for in Section 22.1.3 above within the time therein prescribed, or shall have received at any time before actual disbursement of the Downpayment a notice signed by either Seller or Purchaser disputing entitlement to the Downpayment or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Downpayment (whether or not litigation has been instituted), Escrow Agent shall have the Escrowee shall release right, upon notice to Buyer that portion both Seller and Purchaser, (a) to deposit the Downpayment with the Clerk of the Court in which any litigation is pending and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2Agent, including, without limitation, the Escrowee shall release to Buyer that portion depositing of the Downpayment with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party, and thereupon Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) Agent shall be released to the Sellerof and from all liability hereunder except for any previous gross negligence or willful misconduct.
(IV) If 22.4 Escrow Agent is acting hereunder without charge as an accommodation to Purchaser and Seller, it being understood and agreed that Escrow Agent shall not be liable for any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then error in judgment or any Escrow Deposit (less any amounts offset for claims act done or omitted by it in good faith or pursuant to Section 2.3(a)(i) court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any party has been authorized to do so. Escrow Agent shall not be liable for, and Purchaser and Seller hereby jointly and severally agree to indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorneys’ fees (ii)) (including all accrued interest thereon) remaining (after resolution either paid to retained attorneys or, representing the fair value of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be madelegal services rendered by Escrow Agent to itself), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value arising out of any IHS Stock to be delivered to Buyer from dispute under this Agreement, including the Escrow Deposit shall be calculated based upon the average closing NYSE price cost and expense of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliverydefending itself against any claim arising hereunder.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (a) DNA Escrow Shares shall be placed with a third party commercial escrow agent, satisfactory to NCI and a Representative for a period beginning on the Closing Date and ending on the Escrow Termination Date, to be disbursed solely upon the joint signa tures of NCI and the Representative or upon the Escrow Termination Date, all as set forth below. Disbursements from the escrow shall be made for the payment of amounts, if any, to satisfy the indemnification rights of NCI pursuant to Section 12 hereof.
(b) Subject to the following provisions, the DNA Escrow Shares shall be disbursed during the term hereof at any time or from time to time, whenever NCI shall give a Representative a Notice of Claim. Such Notice of Claim must be for a specified amount.
(i) The Representative may give NCI a written notice ("Notice of Objection") (A) At the Closingattaching a copy of such Notice of Claim, pursuant to an Escrow Agreement to be entered into by the parties substantially (B) stating that, in the form good faith opinion of Exhibit 2.3the Representatives, a the claim described in such Notice of Claim is invalid (either in whole or in specified party) under the terms of Section 12 hereof, (C) giving the reasons for the alleged invalidity, and (D) stating that, based on such alleged invalidity, the Repre sentatives object to the payment of any portion of the Merger Consideration DNA Escrow Shares to the requesting party on account thereof. In the event that a Notice of Objection alleges that a Notice of Claim is only partially invalid, the Representatives, within thirty (30) days of the receipt of such Notice of Claim, agree to pay over to NCI that portion of the amounts specified in such Notice of Claim as shall be equal to FIVE HUNDRED THOUSAND which no objection is made. The Representatives are not required to agree to make any payments to NCI in respect of a Notice of Claim that has been objected to in a Notice of Objection given to the Representatives as aforesaid except ($500,000X) DOLLARS as provided in the immediately preceding sentence, or (Y) in accordance with an order of any arbitration panel initiated by any of the "Escrow Deposit"), based upon the valuation described in Section 3.1(aparties hereto pursuant to paragraph (ii) below, shall be delivered by Buyer, on behalf .
(ii) NCI and the Representatives agree to submit to final and binding arbitration any and all disputes the Representatives have specified in a Notice of Objection or NCI has specified in a Notice of Claim to which the Seller, Representatives have not responded within thirty (30) days of receipt of such Notice of Claim. Any such dispute subject to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee arbitration in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth JAMS Rules as provided in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced12 hereof.
(IIc) In The escrow shall be terminated and the event Escrow Shares automatically delivered to the Shareholders, on the Escrow Termination Date; provided, however, that the Buyer becomes entitled to escrow may continue beyond such date if NCI has asserted indemnification pursuant to Section 12.2claims, the Escrowee shall release to Buyer that portion and any such claims remain unsatisfied. All Escrow Shares in excess of the Escrow Deposit as amount asserted but unsatisfied shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryShareholders.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. On the Closing Date, the Purchaser shall pay to ▇▇ ▇▇▇▇▇▇ Chase, as agent to the Purchaser, the Seller and the Sellers’ Representative (A) At the Closing“Escrow Agent”), to the account designated by the Escrow Agent, the Escrow Amount, in accordance with the terms of Section 3.2 of this Agreement and the Escrow Agreement. Excluding payments arising under Section 3.3 (including any failure to make such payments arising under Section 3.3), any payment that a Seller Party is obligated to make to any Purchaser Indemnified Party pursuant to an Escrow Agreement this Article X (each, a “Claim”) shall be paid first, to be entered into by the parties substantially extent there are sufficient funds in the form of Exhibit 2.3Escrow Account, a portion of from the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND Escrow Account. On the date that is 18 months following the Closing Date ($500,000) DOLLARS (such date, the "“Escrow Deposit"Termination Date”), based upon the valuation described in Section 3.1(aEscrow Agent shall release the Escrow Amount plus all accrued interest thereon (to the extent not utilized to pay any Purchaser Indemnified Party for any Claim) below, shall be delivered by Buyer, on behalf of to the Seller, except that the Escrow Agent shall retain an amount (up to CoreStates Bank, N.A., as escrow agent the total amount then held by the Escrow Agent) equal to the amount of all Claims for indemnification under this Article X asserted in accordance with Section 10.3 prior to the Escrow Termination Date but not yet resolved (the "Escrowee"“Unresolved Claims”). The Escrow Deposit Amount retained for Unresolved Claims shall be held released by the Escrow Agent (to the extent not utilized to pay post-Closing adjustments and to indemnify against the Purchaser Indemnified Parties for any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by such claims resolved in favor of the Escrowee Purchaser Indemnified Parties) upon their resolution in accordance with this Article X and the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion terms of the Escrow Deposit as Agreement. The Purchaser and the Sellers’ Representative shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of jointly instruct the Escrow Deposit as shall be equal Agent in value writing to such indemnification.
(III) If no claim for indemnification on release the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer funds from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, Account in accordance with this Article X and the Seller, on the other handterms of this Agreement.
Appears in 1 contract
Escrow. (Aa) At the Closing, pursuant to the Escrow Amount shall be deposited with a person or an Escrow Agreement to be entered into institution selected by Buyer with the parties substantially in the form of Exhibit 2.3, a portion reasonable consent of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A.Stockholders, as escrow agent (the "EscroweeEscrow Agent"), such deposit to constitute the escrow fund (the "Escrow Fund") and to be governed by the terms set forth herein and in the Escrow Agreement. The Escrow Fund shall be available to compensate Buyer pursuant to the indemnification obligations of the Stockholders as set forth in Section 8.2; provided, however, that Buyer may recover Losses in excess of the Escrow Amount directly from M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in respect of breaches of any of the representations and warranties set forth in the third through seventh sentences of Section 2.1 above. The Escrow Fund shall be the initial but not the exclusive recourse of the Buyer in the event the indemnification obligations of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in respect of breaches of any of the representations and warranties set forth in the third through seventh sentences of Section 2.1 above exceed the amount of the Escrow Fund.
(b) The Escrow Agent shall hold the Escrow Fund (or any then remaining portion thereof), subject to any earlier releases of any portion of the Escrow Fund pursuant to Section 8.5(e) below, in escrow until that date which shall be the earlier of (i) the date on which the Escrow Agent receives instructions to terminate the escrow and distribute the Escrow Fund signed by each of Buyer and the Stockholders, and (ii) the eighteenth (18th) month anniversary of the date of the Closing Date (the "Termination Date"), provided, however, that if such termination is pursuant to clause (ii) above, the Escrow Agent shall continue to hold and not release after the Termination Date all or a portion of the Escrow Fund equal in stated value to the dollar amount of any claim or claims described in any Indemnification Claim Notice that is submitted but not resolved before the Termination Date (such amount being referred to as the "Disputed Claim Amount").
(c) Within three (3) Business Days after the Termination Date (the "Release Date"), the Escrow Agent shall release from escrow to the Stockholders, pro rata, all or any then remaining portion of the Escrow Fund, less the Disputed Claim Amount, if applicable. The Escrow Agent shall in all events release all of the remaining Escrow Fund (including the Disputed Claim Amount) on or before that date that shall be three (3) months after the Release Date (the "Disputed Claim Release Date") unless on or prior to the Disputed Claim Release Date, the parties to this Agreement (other than the Escrow Agent) shall have (i) resolved any dispute by settlement and provided the Escrow Agent with mutually executed delivery instructions with respect to the portion of the Escrow Fund then held by the Escrow Agent, of (ii) any party shall have commenced a legal action or arbitration to resolve such dispute, in which case the Escrow Agent shall continue to hold any then remaining portion of the Escrow Fund (including the Disputed Claim Amount) until such action or arbitration is concluded.
(d) The Escrow Fund, or any beneficial interest therein, may not be pledged, sold, assigned or transferred, including by operation of law, by any Stockholder or be taken or reached by any legal or equitable process in satisfaction of debt or other liability of any Stockholder, prior to the delivery to the Stockholders of the Escrow Fund by the Escrow Agent as provided herein.
(e) At any time after the Closing, Buyer may give written notice to the Stockholders and Escrow Agent that Buyer claims all or any part of the Escrow Fund in satisfaction of any damages for which Buyer is entitled to be indemnified pursuant to this Agreement (such claim is herein referred to as an "Indemnification Claim" and any such written notice of a claim is hereinafter referred to as an "Indemnification Claim Notice"). The Escrow Deposit Indemnification Claim Notice shall be held set forth in reasonable detail: (i) the nature of the Indemnification Claim; and (ii) the amount of the Indemnification Claim (hereinafter referred to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereofas the "Indemnification Claim Amount"). The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that Buyer gives any Indemnification Claim Notice to Escrow Agent, Buyer shall also give such Notice to the Seller becomes obligated Stockholders at the same time such Notice is given to remit IHS Stock back the Escrow Agent. Within fifteen (15) calendar days following receipt of an Indemnification Claim Notice which specifies the amount of the Indemnification Claim, Escrow Agent shall charge the Escrow Fund for the Indemnification Claim Amount and pay to Buyer pursuant the Indemnification Claim Amount unless Escrow Agent receives a written notice from any Stockholder (the “Representative's Notice") objecting to such charge and payment and disputing the Indemnification Claim. The Representative's Notice shall be given to Buyer and Buyer's counsel at the same time the Representative's Notice is given to the post-Closing adjustments Escrow Agent, and shall set forth (i) the amount of the Indemnification Claim Amount in Section 2.2(b)dispute, (ii) the amount of the Indemnification Claim not in dispute, and (iii) in reasonable detail the basis for the dispute. In the event of such a dispute, the Escrowee Escrow Agent shall release pay to Buyer that portion of the Escrow Deposit as Indemnification Claim Amount which is not in dispute, if any, and Buyer and the Stockholder giving the Representative Notice shall have a value equal use commercially reasonable efforts to mutually resolve the amount by which dispute within ten (10) days of Buyer's receipt of the Merger Consideration is so reduced.
(II) Representative's Notice. In the event that such resolution does not occur within said ten-day time period, the Buyer becomes dispute shall be promptly submitted to binding arbitration, conducted in accordance with the Commercial Rules of the American Arbitration Association, to determine which Party is entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that disputed portion of the Escrow Deposit as Indemnification Claim Amount; provided, however, that if the disputed amount is greater than $500,000, either Party shall be equal in value to such indemnification.
(III) If no claim for indemnification on have the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Dateoption, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released prior to the Seller.
(IV) If any claim(s) for indemnification on the part commencement of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Datearbitration proceedings, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) pursue and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after obtain resolution of such claim(s).
(V) dispute and determination through litigation. The value disputed portion of any IHS Stock the Indemnification Claim Amount shall then be paid by the Escrow Agent pursuant to be delivered the arbitrators' award or judgment of the court, as the case may be. In resolving such dispute, the arbitrator or the court, as the case may be, shall determine the "prevailing party" for purposes of Section 11.5 below. Any amount paid to Buyer from the Escrow Deposit Fund pursuant to the foregoing provisions of this Agreement shall be calculated based upon deemed a reduction in the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryPurchase Price.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (A) At No later than 10 Business Days after the Closing, pursuant to an Escrow Agreement to be entered Transferee and Transferor shall enter into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS mutually acceptable escrow agreement (the "“Escrow Deposit"), based upon the valuation described in Section 3.1(aAgreement”) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as with an escrow agent selected by Newco and reasonably acceptable to the Transferor (the "Escrowee"“Escrow Agent”). The Escrow Deposit Agreement shall provide for the establishment of an escrow fund (the “Escrow Fund”) to be funded by Newco on the date the Escrow Agreement is entered into in the amount of the Escrow Amount, which Escrow Fund shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Escrow Agent in accordance with the following:
(I) In terms of this Section 8.11. Each of Newco and Transferee shall have the event that the Seller becomes obligated right to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of notify the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion Agent of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no any claim for indemnification on the part of Buyer is outstanding upon the expiration of one made by any Transferee Indemnified Person pursuant to this Article VIII (1) year an “Escrow Claim Notice”). Promptly following the final determination in accordance with this Article VIII of any claim for indemnification made by any Transferee Indemnified Person pursuant to this Article VIII (including a request for advancement of expenses pursuant to this Article VIII), upon request by Transferee or Newco, Transferor shall execute and deliver a certificate requesting the Escrow Agent to deliver by wire transfer to an account designated by Transferee immediately available funds in the amount of such claim as finally determined in accordance with this Article VIII. On the fifth (5th) anniversary of the Closing Date (the “Escrow Release Date”), any remaining Transferee and Transferor shall execute and deliver to the Escrow Deposit (Agent a certificate requesting the Escrow Agent to deliver by wire transfer to Transferor all amounts that remain in the Escrow Fund, less the sum of any amounts offset subject to claims for claims pursuant to Section 2.3(a)(iindemnification that (i) have not been finally determined before the Escrow Release Date in accordance with this Article VIII and (ii)) shall be released are the subject of Escrow Claim Notices provided before the Escrow Release Date. If at any time after the Escrow Release Date the entire balance remaining in the Escrow Fund exceeds the sum of any amounts subject to the Seller.
(IV) If any claim(s) claims for indemnification on the part that (i) have not been finally determined in accordance with this Article VIII as of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) such time and (ii)) (including all accrued interest thereon) remaining (after resolution are the subject of the outstanding claim(s) Escrow Claim Notices provided before such time, at Transferor’s request, Transferee and payment in respect thereof, if any is owing, Transferor shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from execute and deliver a certificate requesting the Escrow Deposit shall be calculated based upon the average closing NYSE price of Agent to deliver such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryexcess to Transferor by wire transfer.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Penson Worldwide Inc)
Escrow. (Aa) At On the ClosingClosing Date, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by BuyerPurchaser shall, on behalf of the Seller, pay to CoreStates ▇▇▇▇▇ Fargo Bank, N.A.National Association, as escrow agent to Purchaser and Seller pursuant hereto (the "Escrowee"“Escrow Agent”), in immediately available funds, to the interest bearing account established and designated by the Escrow Agent, an amount equal to Twelve Million and 00/100 Dollars ($12,000,000.00), in accordance with the terms of this Agreement and an escrow agreement to be in form and substance mutually acceptable to the parties, which will be executed at the Closing, by and among Purchaser, Seller and the Escrow Agent (the “Escrow Agreement”).
(b) Any payment Seller is obligated to make to any Purchaser Indemnified Parties pursuant to this Article VIII, as may be finally determined pursuant to this Article VIII, shall be satisfied first by release of funds to the Purchaser Indemnified Parties from the Escrow Account by the Escrow Agent within five (5) Business Days after the date notice of any sums due and owing is jointly given to the Escrow Agent by Seller and the applicable Purchaser Indemnified Party and shall accordingly reduce the Escrow Amount. On the Expiration Date, the Escrow Agent shall release the Escrow Amount (to the extent not utilized to pay Purchaser for any indemnification claim due or owing in accordance with the terms of this Agreement) to Seller, except that the Escrow Agent shall retain an amount (up to the total amount then held by the Escrow Agent in the Escrow Account) equal to the amount of claims for indemnification under this Article VIII asserted in writing prior to the Expiration Date but not yet resolved (“Unresolved Claims”). The Escrow Deposit Amount retained for Unresolved Claims shall be held released by the Escrow Agent (to the extent not utilized to pay post-Closing adjustments and to indemnify against Purchaser for any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee such claims resolved in favor of Purchaser) upon their resolution in accordance with this Article VIII and the following:
(I) In terms of the event that Escrow Agreement. Under no circumstances shall the Escrow Agreement serve to create or imply an agreement to create any type of limitation on the liabilities and obligations of Seller becomes obligated under this Agreement to remit IHS Stock back to Buyer the amount of funds held in escrow under the Escrow Agreement. Seller’s liabilities under this Agreement shall apply irrespective of whether such liabilities may exceed the amount of funds held in escrow pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion terms of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedAgreement.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (A) At any time after the Closing, pursuant to an Escrow Agreement to be entered into first Approved Product is approved by the parties substantially Development Committee for Commercial Launch, TWT shall have the right to request that ACLARA place in escrow the ACLARA Deposit Materials for each ACLARA Component that is used in an Approved Product that has been approved by the Development Committee for Commercial Launch. As used in this Article 11, "ACLARA DEPOSIT MATERIALS" shall mean instructions, specifications, and other Technology and materials describing the composition and manufacture of each such ACLARA Component, including a description of the suppliers, raw materials, processes, equipment, and instruments used for such manufacture, all in sufficient detail to reasonably enable TWT to manufacture, without need for further information, the ACLARA Component in the form of Exhibit 2.3same manner as such manufacture is performed by or for ACLARA. As soon as reasonably practicable, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If but no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the later than thirty (30) business day period immediately preceding days, after TWT's request under the date which circumstances set forth above, ACLARA shall deposit such ACLARA Deposit Materials in escrow under an escrow agreement reasonably acceptable to both Parties, or if the Parties are unable to agree, the standard escrow agreement used by a nationally known and reputable escrow agent reasonably selected by TWT. ACLARA shall update the ACLARA Deposit Materials consistent with the foregoing at least each time an Approved Product is two (2) days before approved by the date of such delivery.
(B) The costsDevelopment Committee for Commercial Launch, fees and expenses otherwise regularly as set forth in the applicable escrow agreement, but no less often than once per calendar year. It is acknowledged and agreed that ACLARA may segregate the ACLARA Deposit Materials, to the extent possible, so that only those portions of the Escrowee ACLARA Deposit Materials pertaining to the manufacture of the particular ACLARA Component for which there has been a failure to supply will be released to TWT, provided that the escrow agent shall be borne equally required to release all of the ACLARA Deposit Materials to TWT if the segregated materials are not sufficient to reasonably enable TWT to manufacture the applicable ACLARA Component as set forth above. TWT shall have the right to have an independent technical auditor that is approved by BuyerACLARA, on which approval will not be unreasonably withheld, inspect the one handACLARA Deposit Materials to evaluate the sufficiency thereof for purposes of TWT's exercise of its rights under this Section 11.11; provided that the auditor shall be required to enter into a reasonable confidentiality agreement with ACLARA. The ACLARA Deposit Materials released to TWT under such an escrow agreement shall be treated as the Confidential Information of ACLARA under this Agreement to the extent set forth in Article 15, and shall be used only by TWT, and its contract manufacturer authorized under this Section 11.11, to manufacture ACLARA Components in accordance with this Section 11.11. TWT shall be solely responsible for the Seller, on fees payable to the other handescrow agent under this Section 11.
Appears in 1 contract
Sources: Development and Commercialization Agreement (Aclara Biosciences Inc)
Escrow. (A) At the Closing, Buyer, Seller and the Escrow Agent shall enter into the Escrow Agreement, pursuant to an which Buyer shall deliver the Escrow Agreement Amount to the Escrow Agent, to be entered into by held in escrow (“Escrow”) as provided in this Agreement and the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee")Agreement. The Escrow Deposit Amount shall be held to pay post-Closing adjustments and to indemnify against any claim which may be assertedused, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(Iterms of this Agreement and the Escrow Agreement, to pay indemnity obligations of Seller in accordance with Article IX, purchase price adjustments in accordance with Section 3.2(f) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant and Pre-Closing Deductions in accordance with Section 3.6. Subject to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion terms of this Agreement and the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2Agreement, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part 18 month anniversary of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, the Escrow Amount (plus all earnings on such Escrow Amount, less the aggregate amounts released from Escrow through such date in respect of Seller’s indemnification obligations under Article IX, purchase price adjustments under Section 3.2(f) and Pre-Closing Deductions under Section 3.6, the amount of any such indemnification Claims, purchase price adjustments or Pre-Closing Deductions resolved but remaining Escrow Deposit (less unpaid as of such date and any amounts offset for claims pursuant with respect to other indemnification Claims against Seller under Article IX, purchase price adjustments under Section 2.3(a)(i3.2(f) and (ii)or Pre-Closing Deductions in accordance with Section 3.6 then pending) shall be released to the Seller.
(IV) If . The amounts of any claim(s) for such indemnification on the part obligations of Buyer is (are) outstanding upon the expiration of one (1) year following the Seller or Pre-Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) Deductions resolved but remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, unpaid shall be made)released in accordance with the terms of this Agreement and the Escrow Agreement, and the amounts of any such other indemnification Claims against Seller or any Pre-Closing Deductions then pending shall be released to Seller or Buyer in accordance with the Seller promptly after resolution terms of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from this Agreement and the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryAgreement.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
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 (Acollectively, the "Fund") At the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion escrow and shall dispose of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Fund only in accordance with the followingprovisions of this Section 20.
20.2 Escrow Agent shall deliver the Fund to Sellers or Purchaser, as the case may be, as follows:
(Ia) to Sellers, upon completion of the Closing; or
(b) to Sellers, after receipt of Sellers' demand in which Sellers certifies either that (i) 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 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 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 good, unendorsed certified check of Escrow Agent payable to the order of such 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.
(a) Upon receipt of a written demand from Sellers or Purchaser under Section 20.2(b) or (c), Escrow Agent shall 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 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 thereafter, in its sole and absolute discretion, Escrow Agent may elect either (i) to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Sellers directing the disbursement of the Fund, in which event Escrow Agent shall disburse the Fund in accordance with such agreement; and/or (ii) to take any and all actions as Escrow Agent deems necessary or desirable, in its sole and absolute discretion, to discharge and terminate its duties under this Agreement, including, without limitation, depositing the Fund into any court of competent jurisdiction and bringing any action of interpleader or any other proceeding; and/or (iii) in the event of any litigation between Sellers and Purchaser, to deposit the Fund with the clerk of the court in which such litigation is pending.
(b) If Escrow Agent 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 that the Seller becomes obligated to remit IHS Stock back to Buyer Fund is deposited in a court by Escrow Agent pursuant to the post-Closing adjustments set forth in Section 2.2(b20.3(a)(ii) or (iii), Escrow Agent shall be entitled to rely upon the Escrowee shall release to Buyer that portion decision of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) such court. In the event that of any dispute whatsoever among the Buyer becomes entitled parties with respect to indemnification pursuant to Section 12.2disposition of the Fund, (i) Purchaser and Sellers shall pay the attorney's fees and costs incurred by Escrow 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 becomes, a party and (ii) as between Purchaser and Sellers, the Escrowee non-prevailing party shall release to Buyer that portion pay the reasonable attorneys' fees and costs of the Escrow Deposit as shall be equal in value to such indemnificationprevailing party.
(III) If no claim for indemnification on 20.4 Notwithstanding anything to the part of Buyer is outstanding upon the expiration of contrary in this Agreement, within one (1) year following business day after the date of this Agreement, Escrow Agent shall place the Downpayment in an Approved Investment. The interest, if any, which accrues on such Approved Investment shall be deemed part of the Fund; and Escrow Agent shall dispose of such interest as and with the Fund pursuant to this Agreement. Escrow Agent may not commingle the Fund with any other funds held by Escrow Agent. 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 remaining Escrow Deposit time within seven (less any amounts offset for claims pursuant to Section 2.3(a)(i7) and (ii)) shall be released days prior to the Seller.
accelerated or extended Closing Date (IV) If provided, however, that Sellers and Purchaser shall give Escrow Agent timely notice of any claim(s) for indemnification on such acceleration or extension and that Escrow Agent may hold the part Fund in cash or a non-interest-bearing deposit account if Sellers and Purchaser do not give Escrow Agent timely notice of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(sadjournment).
20.5 As used herein, the term "Approved Investment" means (Va) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costsinterest-bearing demand account or money market fund in Citibank, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.N.
Appears in 1 contract
Escrow. (Aa) At the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held in escrow in an interest bearing trust account by Escrow Agent until delivered as herein provided. Purchaser agrees to pay postprovide the Escrow Agent with its Federal Tax Id number in order that the Escrow Agent may open the interest bearing sub-Closing adjustments and account. Any interest earned on the Deposit shall be paid to indemnify whichever party is entitled thereto. Such interest shall not be credited against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereofthe Price. The Escrow Deposit shall be held and disbursed by Escrow Agent in the Escrowee following manner:
(i) to Seller at the closing upon consummation of the closing; or
(ii) 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 not honor such demand until at least five (5) days after it has sent a copy of such demand to Purchaser, nor thereafter if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the following:provisions of clause (b) of this Section 1.4; or
(Iiii) to Purchaser upon receipt of written demand therefor, stating that either (x) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination, or (y) Seller has defaulted in performance of Seller’s obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that Escrow Agent shall not honor such 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 provisions of clause (b) of this Section 1.4.
(b) Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (ii) or (iii) 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 that 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 becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b)and Purchaser, the Escrowee shall release to Buyer that portion or Escrow Agent is otherwise instructed by a final judgment of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedcourt of competent jurisdiction.
(IId) In the event that Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the Buyer becomes entitled to indemnification pursuant to Section 12.2parties hereto, the Escrowee shall release to Buyer that portion or instructions which conflict with any of the provisions of this Agreement, Escrow Deposit as Agent shall be equal 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 value to such indemnificationwriting signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction.
(IIIe) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing DateEscrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any remaining Escrow Deposit (less written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) modification of this Agreement shall be released to the signed by Escrow Agent, Purchaser and Seller.
(IVf) If Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any claim(s) loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the costs and expenses of defending itself against any claim of liability or participating in any legal proceeding . Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for indemnification on any action taken or suffered by it hereunder in good faith and in accordance with the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution opinion of such claim(s)counsel.
(Vg) The value Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of any IHS Stock 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 delivered unreasonably withheld or delayed. After such resignation, Escrow Agent shall have no further duties or liability hereunder.
(h) Purchaser and Seller, together, shall have the right to Buyer from terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be calculated based upon turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryprovisions hereof.
(Bi) The costsSeller and Purchaser shall be jointly and severally responsible for the reimbursement to Escrow Agent of all expenses, fees disbursements and expenses 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 Escrowee shall be borne equally by Buyer, on Deposit in accordance with the one hand, and the Seller, on the other handterms of this Agreement.
Appears in 1 contract
Sources: Agreement of Sale (Bioject Medical Technologies Inc)
Escrow. No later than five (5) business days after the execution of this Agreement by Purchaser and United, Purchaser and United will (A) At open an escrow (the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000"Escrow") DOLLARS with Chicago Title Insurance Company (the "Escrow DepositHolder"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf and (B) deliver to Escrow Holder a fully executed copy of the Seller, this Agreement together with an authorization to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee act in accordance with the following:
(I) In terms of this Agreement. The aforesaid authorization, together with Escrow Holder's standard provisions, will become part of this Agreement, whether or not annexed hereto; provided, however, that in the event that of any conflict of inconsistency between such standard provisions on the Seller becomes obligated one hand and this Agreement on the other hand, the inconsistency shall be resolved by giving precedence to remit IHS Stock back this Agreement and this Agreement will control. All charges associated with the Escrow, including the Escrow Holder's fees, will be shared equally by Purchaser and United. Purchaser will be entitled to Buyer pursuant all interest earned by the Deposit (subject, however, to the post-Closing adjustments set forth in provisions of Section 2.2(b7 hereof), the Escrowee shall release which interest, if any, will be disbursed to Buyer that portion of the Escrow Deposit as shall have a value equal Purchaser or credited to the amount Purchase Price at Closing
A. Title Report; Approval of Title by which Purchaser. United will employ reasonable and diligent efforts to cause a preliminary report for the Merger Consideration is so reduced.
Property (II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made"Title Report"), shall be released to issued by Chicago Title Insurance Company ("Title Insurer"), together with copies of all title documents referred in the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock Title Report, to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the Purchaser not later than thirty (30) days following the execution of this Agreement by Purchaser and United. Thereafter, Purchaser will have ten (10) business days from its receipt of the Title Report to approve or disapprove in a writing directed to the United any and all matters affecting title to the Property, other than the Permitted Title Exceptions, as defined below; it being understood and agreed that the failure of Purchaser to approve or disapprove any matter affecting title by written notice to United within the aforesaid ten (10)-day period will be deemed approval of such matter. Should Purchaser disapprove any matter of title, United shall determine, within ten (10) business days after United receives Purchaser's timely notice of disapproval, whether United is willing or able, in United's reasonable discretion, to cause such disapproved items to be eliminated prior to or at Closing. If United determines (in United's reasonable discretion), within such ten (10) business day period immediately preceding the date which period, that it is two (2) days before the date of unwilling or unable to cause certain disapproved items to be eliminated prior to or at Closing, United shall give written notice to Purchaser and Escrow Holder identifying such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one handmatters, and thereupon, if Purchaser is unwilling to withdraw or waive Purchaser's disapproval of those matters, and provided that the Sellermatters disapproved by Purchaser do not constitute Permitted Exceptions or other matters that Purchaser, on by the other handterms of this Agreement, does not have the right to disapprove, Purchaser may terminate this Agreement consistently with the terms and provisions hereof.
Appears in 1 contract
Escrow. Supplier shall, promptly after the Effective Date, deposit into escrow (Athe “Escrow”) At the ClosingSource Code for any Software embedded in, pursuant or used in connection with the development of, the Products (including the back-end), in each case owned by Supplier or its Subsidiaries, along with any related documentation and materials (including Technical Manufacturing Information and Product Information) and any Software comprised in the ▇▇▇▇ IP (collectively, the “Escrow Materials”). Supplier will, from time to an time, provide Customer with a list of all third-party Software embedded in the Escrow Agreement Materials and required to use the Escrow Materials. Supplier agrees, during the term of this Agreement, to deposit into such Escrows (on a quarterly basis and for every major new release or similar item, in each case within ten (10) days thereof) any updates to the Escrow Materials. The agreed escrow agreement for any Escrow Materials in the ▇▇▇▇ Catalog Products is set forth on Schedule 9.13 hereof. The Parties agree that the Escrow agreement for any Escrow Materials in the Verisure Developed Products will be entered into upon the completion of the first SOW entered into by the parties Parties and will have terms substantially in similar to the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, agreement on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee")Schedule 9.13. The Escrow Deposit agreements will be deemed “supplementary to” this Agreement for purposes of bankruptcy law. The conditions for release of Escrow shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant limited to the post-Closing adjustments set forth occurrence of a Late Stability Triggering Event or, in Section 2.2(b)respect of Verisure Developed Products, the Escrowee shall release occurrence of a Supply [***] = CERTAIN CONFIDENTIAL INFORMATION OMITTED Triggering Event or the termination of this Agreement (other than a termination under Section 11.03(d); and provided, further, that Customer’s access to Buyer that portion any ▇▇▇▇ IP in the ▇▇▇▇ ▇▇▇▇▇ Services applies only in respect of a Late Stability Triggering Event). Customer will pay for the reasonable and documented fees of the Escrow Deposit as agent (reasonably acceptable to Customer) and for the expense of one employee solely dedicated to fulfilling Customer’s obligations under this Section 9.13 (provided, Supplier shall have a value equal to the amount by which the Merger Consideration is so reduced.
received Customer’s prior written consent for any such fees and or expenses) (II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2collectively, the Escrowee shall release to Buyer that portion “Escrow Costs”). During the period in which Supplier is in material breach of its obligations under this Section 9.13 or the Escrow Deposit as separate escrow agreement, Supplier shall be equal in value to such indemnification.
(III) If no claim liable for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s)Costs.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Aa) At Subject to the Closinglimitations set forth in this Article VIII, pursuant within three Business Days after a Buyer Indemnitee becomes entitled to an Escrow Agreement to be entered into by the parties substantially payment of indemnification for any claim for indemnification under Section 8.1: (i) if there are funds remaining in the form of Exhibit 2.3Escrow Account, Buyer and Seller shall execute and deliver a portion joint written instruction to the Escrow Agent to make such payment to the Buyer Indemnitee out of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND Escrow Amount; and ($500,000ii) DOLLARS (if the "Escrow Deposit")Amount has been fully reserved in respect of pending claims, based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee exhausted or otherwise released in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of this Agreement and the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification Agreement, any Losses not otherwise satisfied pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made8.6(a)(i), shall be released satisfied by payment of all sums due and owing from the Selling Parties to the Seller promptly after resolution Buyer Indemnitee by wire transfer of such claim(s)immediately available funds to an account or accounts designated in writing by the Buyer Indemnitee.
(Vb) The value Except as otherwise provided in this Article VIII, payment for any Losses suffered by any Buyer Indemnitee or the Seller Parties pursuant to this Article VIII shall be made (i) when the Buyer Indemnitee and Seller (if the Indemnitee is a Buyer Indemnitee), or Buyer and the Seller Parties (if the Indemnitee is a Seller Party) resolve the related claim for indemnification and agree on the amount of such Losses, or (ii) when the amount of Losses is finally adjudicated.
(c) On the date that is three Business Days after the 12-month anniversary of the Closing Date (the “Release Date”), Buyer and Seller shall, by joint written instruction, direct the Escrow Agent to release to Seller the remaining amounts in the Escrow Account minus the aggregate amount of Losses that are the subject of unresolved claims made by Buyer Indemnitees pursuant to this Article VIII. To the extent that any IHS Stock to be delivered to Buyer amount has been reserved and withheld from distribution from the Escrow Deposit shall be calculated based upon Account on the average closing NYSE price Release Date on account of an unresolved claim for indemnification and, subsequent to the Release Date, such claim is resolved, Buyer and Seller shall, within three Business Days thereafter, by joint written instruction, direct the Escrow Agent to release (i) to the Buyer Indemnitee(s) the amount of Losses, if any, due in respect of such stock for claim as finally resolved, and (ii) to Seller an amount equal to the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costsexcess, fees and expenses if any, of the Escrowee shall be borne equally by Buyeramount theretofore reserved and withheld from distribution in respect to such claim over the payment, on if any, made pursuant to the one hand, and the Seller, on the other handforegoing clause (i).
Appears in 1 contract
Sources: Asset Purchase Agreement (Miller Industries Inc /Tn/)
Escrow. (Aa) At On the ClosingClosing Date, the Buyer shall deliver to the Escrow Agent the General Escrow Merger Consideration and the Tax Escrow Merger Consideration deliverable pursuant to Section 1.5, for the purpose of securing the applicable indemnification obligations of the Indemnifying Shareholders set forth in this Agreement. The General Escrow Merger Consideration and the Tax Escrow Merger Consideration shall be held by the Escrow Agent under the General Escrow Agreement and the Tax Escrow Agreement, respectively, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee")terms thereof. The Escrow Deposit Merger Consideration shall be held as a trust fund and shall not be subject to pay post-Closing adjustments any lien, attachment, trustee process or any other judicial process of any creditor of any party, and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by solely for the Escrowee purposes and in accordance with the following:terms of the Escrow Agreements.
(Ib) In The adoption of this Agreement and the event that approval of the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to Merger by the post-Closing adjustments set forth shareholders of the Company shall constitute approval of the Escrow Agreements and of all of the arrangements relating thereto, including the placement of the Escrow Merger Consideration in escrow and the appointment and authority of the Indemnification Representatives.
(c) Notwithstanding the initial allocation in accordance with Section 2.2(b1.5(e), the Escrowee Indemnification Representatives shall release be entitled to Buyer that portion of instruct the Escrow Deposit as Agent to reallocate the amounts held under the General Escrow Agreement and the Tax Escrow Agreement in accordance with that certain letter agreement dated August 12, 2004 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Summit Partners, L.P. and the other parties named therein, and the Preferred Shareholders and Common Shareholders shall have a value equal be bound by any determination by the Indemnification Representatives in this regard; provided that such agreement shall not in any manner reduce, delay or impair any distributions to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the General Escrow Deposit Agreement or the Tax Escrow Agreement pursuant to Article VI hereof. The determination of the Indemnification Representatives regarding any such reallocation shall be calculated based upon binding and non-appealable with respect to the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, Common Shareholders and the Seller, on the other handPreferred Shareholders.
Appears in 1 contract
Escrow. As the sole remedy for the indemnity obligations set forth in Article VII, at the Closing the Stockholders shall deposit in escrow, to be held for twelve (A12) At months following the Closingdate of Closing (the “Escrow Period”), pursuant Three Hundred Thousand (300,000) of the shares of Buyer Common Stock received by such Stockholders as a result of the Stock Purchase (the “Escrow Shares”), which shares shall be allocated among the Stockholders in their Pro Rata Portion. In addition, the Buyer will have an off-set right against the Promissory Notes (the “Right of Off-set”), allocated among the Stockholders in their Pro Rata Proportions which Right of Off-set will be in an aggregate amount of Five Hundred Thousand Dollars ($500,000). In the event that the Promissory Notes are repaid in whole or in part prior to an the termination of the Escrow Period, Buyer shall have the right to deposit up to Five Hundred Thousand Dollars ($500,000) (the “Substitute Cash Escrow”), from the repayment of the Promissory Notes, to be held in escrow with the Escrow Agent (as defined below), or a mutually agreed upon substitute Escrow Agent, on terms substantially similar to those set forth in the Escrow Agreement (as defined below). The Escrow Shares along with the Substitute Escrow Cash (if applicable) is collectively referred to as the “Escrow Fund”. The Escrow Fund shall be administered in accordance with the terms and conditions of the Escrow Agreement to be entered into by at the parties substantially in Closing between Buyer, the form of Exhibit 2.3, a portion of Company Stockholder Representative (the Merger Consideration as “Representative”) (who shall be equal ▇▇▇▇▇▇ until a successor is appointed pursuant to FIVE HUNDRED THOUSAND ($500,000Section 1.14(b)) DOLLARS (the "Escrow Deposit"), based and a mutually agreed upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, institution to CoreStates Bank, N.A., serve as escrow agent (the "Escrowee"“Escrow Agent”), in a form to be mutually agreed upon by the parties (the “Escrow Agreement”). The Subject to Article VII, on the first business day following the conclusion of the Escrow Deposit Period, the Escrow Agent shall be held to pay post-Closing adjustments deliver the Escrow Funds, less any such shares and/or cash applied in satisfaction of a claim for indemnification and to indemnify against any claim which may be asserted, shares and/or cash then in dispute pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant a timely filed Notice of Claim related to the post-Closing adjustments indemnification obligations set forth in Section 2.2(bArticle VII, to each Stockholder in the same proportions as initially deposited in escrow. Any Escrow Shares and Substitute Escrowed Cash (if applicable), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion extent not applied in satisfaction of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no a claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims or then in dispute pursuant to Section 2.3(a)(i) and (ii)) shall be released a timely filed Notice of Claim related to the Seller.
(IV) If any claim(s) for indemnification on obligations set forth in Article VII, will be distributed to the part of Buyer is (are) outstanding Stockholders promptly upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s)dispute or claim.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mercator Partners Acquisition Corp.)
Escrow. At the Effective Time, BOKF shall establish an escrow account (Athe "Representation Escrow") with the Escrow Agent. The Representation Escrow shall be governed by an escrow agreement, the form of which is attached hereto as AExhibit "F" (the ARepresentation Escrow "Agreement"), which shall provide as follows:
(a) At the Effective Time, BOKF shall deposit the principal amount of $400,000 into the Representation Escrow, which, together with (i) all interest earned thereon, but reduced by (ii) any Representation Escrow Allowed Claim (as hereafter defined) is referred to herein as the "Representation Escrow Funds."
(b) The Representation Escrow Funds shall be invested in a certificate of deposit at CCNB maturing on March 31, 2000, at the rate and on the terms and conditions generally offered by CCNB for certificates of deposit of comparable size and duration, and upon maturity as necessary, in three-month certificates of deposit at CCNB at the rates and on terms and conditions generally offered by CCNB for certificates of comparable size and duration at each renewal date, provided that any penalty for early withdrawal of such funds will either be waived by CCNB or borne by BOKF.
(c) The representations, warranties, covenants and agreements of Chaparral contained in this Agreement shall survive the Closing, pursuant to an Escrow Agreement and BOKF shall be indemnified and held harmless from any and all losses, to be entered into decreased at a rate of thirty-five percent (35%) to account for all federal and state taxes, arising from any material breach by the parties substantially in the form Chaparral of Exhibit 2.3any such representations, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND warranties, covenants and agreements ($500,000) DOLLARS (the collectively, "Escrow DepositLosses"), based upon provided that (i) written notice of such Losses must be given to Chaparral on or before ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the valuation described in Section 3.1(a) below, sole remedy available to BOKF for any Losses shall be delivered by Buyerlimited solely to a claim against the Representation Escrow Funds, on behalf (iii) all payments, if any, to be made in respect of any Losses shall be made solely from the Representation Escrow Funds, (iv) the Chaparral shareholders shall have no obligations or liability for any such Losses except to the extent of the SellerRepresentation Escrow Funds, to CoreStates Bank, N.A., as escrow agent and (the "Escrowee"). The Escrow Deposit v) no claim shall be held to pay post-Closing adjustments made for any Losses unless and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by until the Escrowee in accordance with the following:aggregate amount of all Losses exceeds $25,000.
(Id) In the event that BOKF makes no claim for any Losses on or before March 31, 2000, the Seller becomes obligated to remit IHS Stock back to Buyer pursuant Representation Escrow Agreement shall terminate and the Escrow Agent shall, on or before April 15, 2000, distribute the Representation Escrow Funds on a pro rata basis to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion holders of the Escrow Deposit Chaparral Common as shall have a value equal to of the amount by which the Merger Consideration is so reducedEffective Time.
(IIe) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2BOKF makes a claim for any Losses on or before March 31, 2000, the Escrowee Escrow Agent shall release (i) on or before April 15, 2000, distribute on a pro rata basis to Buyer that portion the holders of the Chaparral Common as of the Effective Time an amount equal to the Representation Escrow Funds less the amount of all Losses claimed by BOKF, and (ii) continue to hold and invest the remaining Representation Escrow Funds until such claim is resolved by (i) the mutual agreement of a majority of the Agents (as defined below) and BOKF, or (ii) a final adjudication determining the merits of the BOKF claim, at which time the Representation Escrow Agreement shall terminate, the Escrow Agent shall pay the claim of BOKF as mutually agreed or finally adjudicated (an "Representation Escrow Allowed Claim") and the Escrow Agent shall distribute any remaining Representation Escrow Funds on a pro rata basis to the holders of the Chaparral Common as of the Effective Time.
(f) The rights of the holders of the Chaparral Common in the Representation Escrow and the Representation Escrow Funds shall not be assignable or transferable except by operation of law or by intestacy and will not be evidenced by any certificate or other interest.
(g) The persons who are members of the Board of Directors of Chaparral immediately prior to the Closing shall collectively serve as agents, acting by a majority vote in the same manner as a board of directors acting under the TBCA, for the holders of the Chaparral Common as of the Effective Time and shall have full authority to act for and on behalf thereof in the administration of the provisions of this Section (the AAgents@). The actions of the Agents shall be deemed actions taken by them as members of the Board of Directors of Chaparral prior to the Closing.
(h) BOKF shall pay the fees and costs of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released Agent with respect to the SellerRepresentation Escrow.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Bok Financial Corp Et Al)
Escrow. (A) At the Closing, pursuant to Parent, Seller Representative, on behalf of the Sellers, and Escrow Agent shall enter into an Escrow Agreement to be entered into by (the parties “Escrow Agreement”), substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be assertedB, pursuant to Sections 12.2 which the Working Capital Escrow Amount, the Indemnity Escrow Amount, the Generator Escrow Amount and 12.4 hereof. The the Severance Escrow Deposit 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 (such amounts held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer Escrow Agent pursuant to the post-Closing adjustments set forth in Section 2.2(b)Escrow Agreement, the Escrowee shall release “Working Capital Escrow Fund”, the “Indemnity Escrow Fund”, the “Generator Escrow Fund” and the “Severance Escrow Fund” respectively). Pursuant to Buyer that portion the terms of the Escrow Deposit as shall have a value equal to Agreement, (w) all funds remaining in the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2Working Capital Escrow Fund, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest undistributed earnings thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after Payment Agent for distribution to the Sellers in accordance with Section 2.11 upon resolution of such claim(s).
the Adjustment Amount in accordance with Section 2.10, (Vx) The value all funds remaining in the Indemnity Escrow Fund, including all undistributed earnings thereon but net of reserves for pending claims, will be released to the Payment Agent for distribution to the Sellers in accordance with Section 2.11 twelve (12) months following the Closing Date; and as each pending claim is resolved, the excess of the corresponding reserve (together with any IHS Stock undistributed earnings thereon) over the amount allowed will be released to be delivered the Payment Agent for distribution to Buyer from the Sellers in accordance with Section 2.11, (y) all funds remaining in the Generator Escrow Deposit Fund, including all undistributed earnings thereon, shall be calculated based upon released to the average closing NYSE price of such stock Payment Agent for distribution to the thirty Sellers in accordance with Section 2.11 twelve (3012) business day period immediately preceding months following the date which is two Closing Date and (2z) days before all funds remaining in the date of such delivery.
(B) The costsSeverance Escrow Fund, fees and expenses of the Escrowee including all undistributed earnings thereon, shall be borne equally by Buyer, on released to the one hand, and Payment Agent for distribution to the Seller, on Sellers in accordance with Section 2.11 six (6) months following the other handClosing Date.
Appears in 1 contract
Sources: Merger Agreement (CyrusOne Inc.)
Escrow. (Aa) At the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion $1,000,000 of the Cash Merger Consideration as (the “Escrow Amount”) shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A.deposited with Deutsche Bank National Trust Company, as escrow agent (the "Escrowee"“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. The Notwithstanding anything to the contrary in this Agreement, recourse against the Working Capital Escrow Deposit 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 in Section 8.4 hereof) shall be held to pay post-Closing adjustments constitute the sole and to indemnify against exclusive remedy of any claim which may be assertedAcquiror Indemnified Party (as defined in Article VIII) under this Agreement, pursuant to Sections 12.2 and 12.4 except as otherwise set forth in Section 9.6(a) hereof. The Escrow Deposit Amount shall be held and disbursed 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 Escrowee in accordance with parties (the following:“Escrow Agreement”) to be executed by Acquiror, Target, the Shareholders Representative and the Escrow Agent at or prior to Closing.
(Ib) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant Subject to the post-Closing adjustments set forth in last sentence of this Section 2.2(b1.12(b), the Escrowee shall release Escrow Amount plus the interest and any earnings accrued on the Escrow Amount less any amounts released earlier pursuant to Buyer this Agreement or the Escrow Agreement, will be released by the Escrow Agent on the date that is 24 months after the Closing Date (the “Escrow Termination Date”) to the Escrow Shareholders. Notwithstanding the foregoing, to the extent that any then pending and unresolved claims for indemnification under Section 8.2 exist, that portion of the Escrow Deposit as Amount necessary to satisfy such claims shall have a value equal to be retained by the amount by which the Merger Consideration is so reducedEscrow Agent until such claims are finally resolved.
(IIc) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of Claims against the Escrow Deposit as Fund shall be equal in value to such indemnification.
(III) If no claim for indemnification on resolved between the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, Indemnified Parties and the Seller, on Shareholders Representative in the other handmanner provided in Article VIII hereof.
Appears in 1 contract
Sources: Merger Agreement (Microtune Inc)
Escrow. (Aa) At Chicago Title Insurance Company is hereby designated as the Closingescrow holder (in such capacity, pursuant “Escrow Holder”). This Agreement also constitutes escrow instructions duly signed by Purchaser and Seller. Although Escrow Holder may require further written instructions executed by Purchaser and Seller to an clarify the duties and responsibilities of Escrow Holder, any such further instructions shall not modify or amend the provisions of this Agreement. Furthermore, in the event of any discrepancy between this Agreement and such further instructions, the provisions of this Agreement shall prevail.
(i) Upon receipt by Escrow Holder of the Deposit, Escrow Holder shall cause the same to be entered deposited into an interest bearing account at Bank of America or another New York Clearing House Bank selected by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND Escrow Holder and approved by Seller ($500,000) DOLLARS (the "Escrow Deposit"“Escrow”), based upon it being agreed that Escrow Holder shall not be liable for (x) any loss of such investment (unless due to Escrow Holder’s gross negligence, willful misconduct or breach of this Agreement) or (y) any failure to attain a favorable rate of return on such investment. Escrow Holder shall deliver the valuation described in Section 3.1(aDeposit, and the interest accrued thereon, to Seller or to Purchaser, as the case may be, under the following conditions:
(1) belowThe Deposit, and the interest accrued thereon, shall be delivered by Buyerto Seller at the Closing; or
(2) The Deposit, on behalf of and the Sellerinterest accrued thereon, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held delivered to pay post-Closing adjustments and to indemnify against any claim which may be assertedSeller following receipt by Escrow Holder of written demand therefor from Seller stating that Purchaser has defaulted in the performance of its obligations under this Agreement, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit provided Purchaser shall be held and disbursed by the Escrowee not have given written notice of objection in accordance with the following:provisions set forth below; or
(I3) The Deposit, and the interest accrued thereon, shall be delivered to Purchaser following receipt by Escrow Holder of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, in each case provided Seller shall not have given written notice of objection in accordance with the provisions set forth below; or
(4) The Deposit, and the interest accrued thereon, shall be delivered to Purchaser or Seller as directed by written instructions of both Seller and Purchaser.
(ii) Upon the receipt of a written demand for the Deposit by Seller or Purchaser, pursuant to subsection (2) or (3) above, Escrow Holder shall promptly give notice thereof (including a copy of such demand) to the other party. The other party shall have the right to object to the delivery of the Deposit, by giving written notice of such objection to Escrow Holder at any time within ten (10) days after such party’s receipt of notice from Escrow Holder, but not thereafter. Such notice shall set forth the basis (in reasonable detail) for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Holder shall promptly give a copy of such notice to the party who filed the written demand. If Escrow Holder shall have timely received such notice of objection, Escrow Holder shall continue to hold the Deposit, and the interest accrued thereon, until (x) Escrow Holder receives joint written notice from Seller and Purchaser directing the disbursement of the Deposit, in which case Escrow Holder shall then disburse the Deposit, and the interest accrued thereon, in accordance with said direction, or (y) litigation is commenced between Seller and Purchaser, in which case Escrow Holder shall deposit the Deposit, and the interest accrued thereon, with the clerk of the court in which said litigation is pending, or (z) Escrow Holder takes such affirmative steps as Escrow Holder may elect, at Escrow Holder’s option, in order to terminate Escrow Holder’s duties hereunder, including but not limited to depositing the Deposit, and the interest accrued thereon, in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party in such interpleader action, as determined by a final non-appealable order of such court. Escrow Holder shall give notice to Seller and Purchaser prior to making any deposit pursuant to subclauses (y) or (z) of this Section 3.1(b)(ii).
(iii) Escrow Holder may rely and act upon any instrument or other writing reasonably believed by Escrow Holder to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable in connection with the performance of any duties imposed upon Escrow Holder by the provisions of this Agreement, except for Escrow Holder’s own gross negligence, willful misconduct or default. Escrow Holder shall have no duties or responsibilities except those set forth herein. Escrow Holder shall not be bound by any modification, cancellation or rescission of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Holder’s duties hereunder are affected, unless Escrow Holder shall have agreed thereto in writing. Escrow Holder shall be reimbursed by Seller and Purchaser for any expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Holder’s fees and expenses with respect to any interpleader action incurred in connection with this Agreement, and such liability shall be joint and several; provided, however, that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such expenses paid to Escrow Holder. In the event that the Escrow Holder shall be uncertain as to Escrow Holder’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth that, in Section 2.2(b)Escrow Holder’s opinion, the Escrowee shall release to Buyer that portion are in conflict with any of the provisions hereof, Escrow Deposit as Holder shall be entitled to hold the Deposit, and the interest accrued thereon, and may decline to take any other action. After delivery of the Deposit, and the interest accrued thereon, in accordance herewith, Escrow Holder shall have a value equal to the amount by which the Merger Consideration is so reducedno further liability or obligation of any kind whatsoever.
(IIiv) In Escrow Holder shall have the event that right at any time to resign upon ten (10) business days prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Holder and shall notify Escrow Holder of the Buyer becomes entitled name and address of such successor Escrow Holder within ten (10) business days after receipt of notice of Escrow Holder of its intent to indemnification pursuant resign. If Escrow Holder has not received notice of the name and address of such successor Escrow Holder within such period, Escrow Holder shall have the right to Section 12.2select on behalf of Seller and Purchaser a bank or trust company licensed to do business in the State of New York and having a branch located in New York County to act as successor Escrow Holder hereunder. At any time after the ten (10) business day period, Escrow Holder shall have the right to deliver the Deposit, and the interest accrued thereon, to any successor Escrow Holder selected hereunder, provided such successor Escrow Holder shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Holder’s obligations hereunder, and Purchaser and Seller agree to execute and deliver any documentation which may reasonably be required by the successor Escrow Holder to confirm same. Upon the delivery of all such amounts and such assumption agreement, the Escrowee successor Escrow Holder shall release to Buyer that portion become Escrow Holder for all purposes hereunder and shall have all of the rights and obligations of Escrow Deposit as Holder hereunder, and the resigning Escrow Holder shall be equal in value to such indemnificationhave no further responsibilities or obligations hereunder.
(IIIv) If no claim for indemnification on the part Seller and Purchaser hereby agree to jointly and severally indemnify, defend and hold harmless Escrow Holder from and against fifty percent (50%) of Buyer is outstanding upon the expiration any and all losses, costs, damages, expenses and reasonable attorneys’ fees actually incurred by Escrow Holder arising out of one (1) year following the Closing Dateit acting as Escrow Holder hereunder, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released other than to the Sellerextent arising from Escrow Holder’s gross negligence or willful misconduct or breach of this Agreement.
(IVvi) If any claim(s) for indemnification The interest earned on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon paid to the average closing NYSE price party entitled to receive the Deposit as provided in this Agreement. Purchaser shall not be entitled to any credit against the Purchase Price with respect to any such interest paid to Seller at Closing. The party receiving such interest shall pay any income taxes thereon. Purchaser’s taxpayer identification number is ▇▇-▇▇▇▇▇▇▇. Settlers Ridge GP I’s and Settlers Ridge LP I’s taxpayer identification numbers are ▇▇-▇▇▇▇▇▇▇ and ▇▇-▇▇▇▇▇▇▇, respectively. Settlers Ridge GP II’s and Settlers Ridge LP II’s taxpayer identification numbers are ▇▇-▇▇▇▇▇▇▇, and ▇▇-▇▇▇▇▇▇▇, respectively. Milford’s taxpayer identification number is ▇▇-▇▇▇▇▇▇▇. The provisions of such stock for this Section 3.1(b) shall survive the thirty (30) business day period immediately preceding the date which is two (2) days before the date Closing or termination of such deliverythis Agreement.
(B) The costs3.2 For purposes of this Agreement, fees the “Close of Escrow” or “Closing” shall be the purchase and expenses sale of the Escrowee Property Interests contemplated herein at a closing to take place through the escrow services of Escrow Holder. The Close of Escrow shall be borne equally by Buyeroccur on or before October 1, 2015 (the “Closing Date”), time being of the essence of Purchaser’s obligation to close the purchase of the Property on the one hand, and the Seller, on the other handsaid date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Escrow. 9.1 Closing The escrow (Athe “Escrow”) At for the Closing, pursuant to an consummation of this transaction shall be established with Escrow Agreement to be entered into Holder at the address indicated in Section 15.1 hereof by the parties substantially deposit of an original signed copy of this Agreement with Escrow Holder contemporaneously with the execution hereof. This Agreement shall constitute both an agreement among Buyer and Seller and escrow instructions for Escrow Holder. If Escrow Holder requires separate or additional escrow instructions which it deems necessary for its protection, Seller and Buyer hereby agree promptly upon request by Escrow Holder to execute and deliver to Escrow Holder such separate or additional escrow instructions (the “Additional Instructions”). In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern, and the Additional Instructions shall so provide. The Additional Instructions shall not modify or amend the provisions of this Agreement unless otherwise agreed to in writing by Seller and Buyer. On the Closing Date, provided that the conditions set forth in Sections 7.1 and 7.2 hereof have been satisfied or waived, Escrow Holder shall take the following actions in the form order indicated below:
(a) With respect to all closing documents delivered to Escrow Holder hereunder, and to the extent necessary, Escrow Holder is authorized to insert into all blanks requiring the insertion of Exhibit 2.3, a portion dates the date of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf recordation of the Deed or such other date as Escrow Holder may be instructed in writing by Seller and Buyer;
(b) Record the Deed in the official records of Orange County, California;
(c) Deliver to Seller, to CoreStates Bankin cash or current funds, N.A.the Purchase Price, plus or minus, as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which case may be assertedbe, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee amounts determined in accordance with the following:provisions of Section 10 hereof and as shown on the Closing Statement, Buyer’s original signed counterpart of the Assignment of Contracts and ▇▇▇▇ of Sale and General Assignment, and conformed copies of the recorded Deed;
(Id) In the event that the Seller becomes obligated to remit IHS Stock back Deliver to Buyer pursuant those items referred to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion 6.1 hereof and a conformed copy of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.recorded Deed;
(IIe) In Cause the event that Title Company to issue the Buyer becomes entitled to indemnification pursuant to Title Policy for the Real Property in accordance with the provisions of Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.4.2.3 hereof; and
(IIIf) If no claim for indemnification on the part of Deliver to Seller and Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining a final closing statement which has been certified by Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock Holder to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliverytrue and correct.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Banc of California, Inc.)
Escrow. Unless Purchaser is a Section 2.1(c)(iii) Purchaser, concurrent with the signing hereof, (i) each Purchaser has (A) At deposited the ClosingSubscription Amount with American Stock Transfer & Trust Company, LLC, as Escrow Agent (“AST” and, collectively with any Custodians, the “Escrow Agent”), pursuant to an that certain Escrow Agreement to be entered into by the parties substantially (in the form of attached hereto as Exhibit 2.3H) between the Company and AST (as it may be amended or otherwise modified from time to time, a portion of the Merger Consideration as shall be “AST Escrow Agreement”, and collectively with any Custodian Agreements, the “Escrow Agreement”) or (B) segregated cash equal to FIVE HUNDRED THOUSAND the Subscription Amount in an account with a custodian ($500,000a “Custodian”) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, of funds held on behalf of an “investment company” under the Seller, to CoreStates Bank, N.A.Investment Company Act of 1940, as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be assertedamended, pursuant to Sections 12.2 binding escrow instructions (“Custodian Agreements”) for release of such funds by such Custodian to the Company, at the direction of the Company, upon the satisfaction of conditions set forth in the AST Escrow Agreement, and 12.4 hereof. The Escrow Deposit (ii) the Company has issued instructions to the Transfer Agent authorizing the issuance, in book-entry form, of the number of Common Shares specified on such Purchaser’s signature page hereto (or, if the Company and such Purchaser shall be held and disbursed by have agreed, as indicated on such Purchaser’s signature page hereto, that such Purchaser will receive Common Shares in certificated form, then the Escrowee Company shall instead instruct the Transfer Agent to issue such specified Common Shares in accordance certificated form (the “Stock Certificates”), or as otherwise set forth on the Stock Certificate Questionnaire included as Exhibit B-2 hereto) concurrent with the following:
(I) In Escrow Agent’s release of the event that Subscription Amount to the Seller becomes obligated to remit IHS Stock back to Buyer Company pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedAgreement.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (a) All claims for Buyer Losses payable hereunder shall be satisfied first by release to Buyer of the Escrow Cash held in the Indemnity Escrow pursuant to the Escrow Agreement, and second by release to Buyer of the Escrow Shares held in the Indemnity Escrow pursuant to the Escrow Agreement. Only after the Indemnity Escrow has been exhausted will Buyer have the right to pursue any other remedies against Seller permitted hereunder.
(b) In accordance with the terms of the Escrow Agreement, Buyer shall be entitled to receive reimbursement from the Escrow Cash and the Escrow Shares for Buyer's actual costs and expenses arising out of or resulting from Assumed Environmental Liabilities that: (i) are not disclosed in Schedule 4.16, and (ii) do not arise out of or result from: (A) At Buyer's, its Subsidiaries', or any of their successors' construction, reconstruction, refurbishment, renovation, substantial modification, restoration, conversion, structural alteration, relocation or enlargement of any building or structure or any clearing, grading or other movement of land by human intervention for any purpose other than the Closingoperation, pursuant to an Escrow Agreement to be entered into by maintenance, repair or expansion of the parties Business that, in any case, substantially in disturbs the form surface or subsurface, surface water or ground water of Exhibit 2.3, a any portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND any Leased Property; or ($500,000B) DOLLARS (the "Escrow Deposit")any voluntary action, based upon the valuation described in Section 3.1(a) below, shall be delivered program or expense incurred by Buyer, on behalf its Subsidiaries or any of their successors under or related to Environmental Law other than: (1) the continuation in a prudent manner in the ordinary course of business of established programs of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant Business existing prior to the post-Closing adjustments set forth date of this Agreement to comply with Environmental Law; or (2) any action in Section 2.2(b)response to a requirement of a governmental authority, the Escrowee shall release law, rule or regulation that requires remedial action with respect to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification Hazardous Material on the part of Buyer is outstanding upon the expiration Buyer; or (C) any voluntary disclosure to a third party of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally information or data by Buyer, on its Subsidiaries or any of their successors, except to the one hand, and the Seller, on the other handextent that Buyer reasonably believes in good faith that a reportable quantity of Hazardous Material has been released or it would otherwise be unlawful not to disclose such information or data.
Appears in 1 contract
Escrow. (A) At a. On or before the date of the Closing, each Investor shall have delivered to the Escrow Agent the Purchase Price for the Investor Shares (the aggregate 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 an 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 pursuant to this Agreement for its benefit and for the benefit of the Investors as set forth herein.
c. The Escrow Agent shall hold and release the Transaction Documents and the Escrowed Funds only in accordance with the terms and conditions of this Section 14.
d. Subject to the provisions of Section 14(f), the Escrow Agent shall release the Transaction Documents and Escrowed Funds as follows:
i. On the Closing Date, the Escrow Agent will release the Transaction Documents to the Company and the 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 entered into by delivered to the parties Company shall be delivered pursuant to written instructions substantially in the form of Exhibit 2.3A hereto (the “Instructions”) signed by the Company.
iii. Notwithstanding the above, a portion upon receipt by the Escrow Agent of the Merger Consideration as Instructions, the Escrow Agent shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (deliver the "Escrow Deposit"), based upon Transaction Documents and the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Escrowed Funds in accordance with the following:
(I) In 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 satisfactory to the Escrow Agent) to the effect that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant 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 post-Closing adjustments 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 released are set forth in this Section 2.2(b)14. The Company reaffirms its agreement to abide by the terms and conditions of this Agreement 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 or bound 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) shall be obligated only for the performance of such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact stated therein or the 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, but in no event less than a reasonable amount of care; and (vi) may consult with counsel satisfactory to the Escrow Agent, the Escrowee opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.
ii. The Company and the Investors acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall release not be liable for any action taken by Escrow Agent in good faith and believed by the Escrow Agent to Buyer that portion 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 Deposit as shall have a value equal Agent’s partners, employees, agents and representatives for any action taken or omitted to the amount be taken by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal 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 value to such indemnification.
(III) If no claim for indemnification the case of gross negligence or willful misconduct on the part of Buyer the Escrow Agent committed in its capacity as Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Company and the Investors under this Agreement and to no other person.
iii. The Company agrees to reimburse the Escrow Agent for outside counsel fees, to the extent authorized hereunder and 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 the Escrowed Funds to a substitute escrow agent selected by the Company. If no successor escrow agent is outstanding named by the Company, the Escrow Agent may apply to a court of competent jurisdiction 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 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 following terms and conditions:
i. If any dispute shall arise with respect to the delivery, ownership, right of possession or disposition of the Transaction Documents or the Escrowed Funds, or if the Escrow Agent shall in good faith be uncertain as to its duties or rights hereunder, the Escrow Agent shall be authorized, without liability to anyone, to (i) refrain from taking any action other than to continue to hold the Transaction Documents or the Escrowed Funds pending receipt of an Instruction from the Company, or (ii) deposit the Transaction Documents and Escrowed Funds with any court of competent jurisdiction in the State of New York, in which event the Escrow Agent shall give written notice thereof to the Company and 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 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 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 Agent obeys or complies with a Court Order, the Escrow Agent shall not be liable to the Investors, the Company or to any other person, firm, corporation or entity by reason of such compliance.
g. The escrow established hereby shall terminate upon the expiration release of one (1) year following all of the Closing DateTransaction Documents and delivery to the Company of the Escrowed Funds in accordance with this Section 14, or at any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) time upon the agreement in writing of the Investors and (ii)) 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 released entitled to the Seller.
(IV) If receive its pro rata portion of any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, but only if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon Agent receives from such Investor the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryInvestor’s taxpayer identification number and other requested information and forms.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (Aa) At The parties hereto agree that Three Million Four Hundred Seventy-Five Thousand Dollars ($3,475,000.00) of the ClosingClosing Merger Consideration (the “Escrow Amount”) shall be deposited by Parent in an interest-bearing account established by the Parent (the “Escrow Account”) with SunTrust Bank, pursuant or such other bank or trust company as is reasonably acceptable to the Stockholder Representative (the “Escrow Agent”), to be held and distributed by the Escrow Agent in accordance with the terms and conditions of an Escrow Agreement to be entered into by among the parties Parent, the Stockholder Representative and the Escrow Agent substantially in the form of Exhibit 2.3C hereto, a portion of with such changes and additions as the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND Escrow Agent may reasonably require (the “Escrow Agreement”). Two Million Dollars ($500,0002,000,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as Amount shall have a value equal be available solely to the amount by indemnify, hold harmless and reimburse any Indemnified Party from any Damages for which the Merger Consideration such Indemnified Party is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, 10.02(viii) below (the Escrowee shall release to Buyer that portion “Calcaneal Stem Claims Escrow Amount”). Three Hundred Twenty-Five Thousand Dollars ($325,000.00) of the Escrow Deposit as Amount shall be available solely to indemnify, hold harmless and reimburse any Indemnified Party from any Damages for which such Indemnified Party is entitled to indemnification pursuant to Section 10.02(vii) below (the “Tax Escrow Amount”). Fifty Thousand Dollars ($50,000.00) of the Escrow Amount shall be available solely to the Stockholder Representative to reimburse his expenses in accordance with Section 3.05 above and not for claims for Damages pursuant to Article X or any other purpose (the “Stockholder Representative Escrow Amount”). Each Company Equityholder shall have an interest in the Escrow Amount in an amount equal to the product of his, her or its (X) applicable Allocable Percentage as set forth in value Schedule 3.01(d) and (Y) the Escrow Amount. Subject to such indemnificationSection 3.05, no Company Equityholder shall receive cash held in escrow unless and until permitted under the terms of this Section 3.07, Article X and the Escrow Agreement.
(IIIb) If no claim Parent shall establish the Escrow Account as soon as practicable after the Effective Time for indemnification on the part deposit of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims Amount pursuant to Section 2.3(a)(i3.07(a). All interest earned on the Escrow Account shall be added to the Escrow Amount. The Escrow Account shall be in the name of Parent for the benefit of the Company Equityholders, and shall be used to satisfy (i) any obligations due any Indemnified Parties under Article X, (ii) the Stockholder Representative’s obligation to make any payments that may be due to Parent pursuant to Section 3.04, (iii) any expenses of the Stockholder Representative (not to the exceed the Escrow Reimbursement Cap) pursuant to Section 3.05 and (ii)iv) any other liabilities or obligations of the Stockholder Representative or the Company Equityholders to the Parent pursuant to this Agreement or any document, instrument, agreement or certificate delivered pursuant to this Agreement. Any fees incurred in the establishment, maintenance or termination of the Escrow Account shall be released to paid from the SellerEscrow Account.
(IVc) If Upon the first business day following: (i) the first anniversary of the Closing Date (such date, the “First Escrow Release Date”), Parent shall cause the Escrow Agent to disburse from the Escrow Account One Million One Hundred Thousand Dollars ($1,100,000.000), less the aggregate amount of all Claimed Amounts claimed in all Claim Notices delivered by Parent within the time period permitted therefor which either have been paid or which have not been finally resolved or paid as of the First Escrow Release Date, to the Company Equityholders in the manner set forth in Section 3.07(d) (“First Escrow Release Funds”); (ii) the third anniversary of the Closing Date (such date, the “Second Escrow Release Date”) Parent shall cause the Escrow Agent to disburse from the Escrow Account Three Hundred Twenty Five Thousand Dollars ($325,000), less the aggregate amount of all Claimed Amounts claimed in all Tax Claim Notices delivered by Parent within the time period permitted therefor which either have been paid or which have not been finally resolved or paid as of the Second Escrow Release Date, to the Company Equityholders in the manner set forth in Section 3.07(d) (the “Second Escrow Release Funds”); and (iii) the fifth anniversary of the Closing Date (such date, the “Final Escrow Release Date”), Parent shall cause the Escrow Agent to disburse the amounts remaining in the Escrow Account, including any claim(s) for indemnification interest earned on the part Escrow Account, less the aggregate amount of Buyer is all Claimed Amounts claimed in all Claim Notices delivered by Parent within the time periods permitted therefor which have not been finally resolved or paid as of the Final Escrow Release Date (areand any subsequent resolution of any disputes as provided in Article X) outstanding upon (the expiration “Remaining Escrow Funds”), to the Company Equityholders in the manner set forth in Section 3.07(d). For purposes of one clarification, the Remaining Escrow Funds shall include the Stockholder Representative Amount, less the aggregate amount of all Stockholder Representative Expenses paid to the Stockholder Representative prior to the Final Escrow Release Date
(1d) year following Parent shall cause the Closing DateEscrow Agent to disburse the First Escrow Release Funds, then any Second Escrow Deposit Release Funds and the Remaining Escrow Funds under this Section 3.07 by disbursing to each holder of a Certificate or Equity Instrument (less any amounts offset for claims or an affidavit in accordance with Section 3.03(f)) previously exchanged and cancelled pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made3.03(b), shall be released an amount equal to the Seller promptly after resolution such Company Equityholder’s Allocable Percentage of such claim(sFirst Escrow Release Funds, Second Escrow Release Funds and Remaining Escrow Funds as set forth in Schedule 3.01(d).
(Ve) The value parties hereto hereby acknowledge and agree that the Escrow Account shall be treated as an installment obligation for purposes of the Code, and no party shall take any IHS Stock to be delivered to Buyer action or filing position inconsistent with such characterization. Consistent with Proposed Treasury Regulation Section 1.468B-8, for Tax reporting purposes, all interest or other income earned from the investment of the Escrow Deposit Account or any portion thereof in any Tax year shall be calculated based upon reported as allocated to Parent until the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses distribution of the Escrowee shall be borne equally by Buyer, on the one hand, Escrow Account (or portion thereof) is determined and thereafter to Parent and the Seller, on Company Equityholders in accordance with their respective interests in the other handEscrow Account.
Appears in 1 contract
Escrow. (A) At 8.1 Following Completion, the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit Amount shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The in the Escrow Deposit shall be held and disbursed by the Escrowee Account in accordance with the followingterms of this clause 8 and the Escrow Letter.
8.2 Any interest that accrues on the credit balance on the Escrow Account from time to time shall be credited to the Escrow Account and any payment of principal out of the Escrow Account shall include a payment of the interest earned on that principal sum.
8.3 The liability to taxation on any interest on any amount in the Escrow Account shall be borne by the party ultimately entitled to that interest.
8.4 The Buyer and the Seller shall promptly provide such instructions to the Escrow Agent (where relevant in the form specified by the Escrow Letter) and take all other actions in relation to the Escrow Account as are necessary to give effect to the provisions of this clause 8.
8.5 No amount shall be released from the Escrow Account otherwise than in accordance with this clause 8 and the terms of the Escrow Letter.
8.6 If a Notified Claim arises and is Resolved on or before the Release Date, the Buyer and the Seller shall, as soon as reasonably practicable, instruct the Escrow Agent in accordance with the terms of the Escrow Letter, to release to the Buyer (or as the Buyer shall otherwise direct) from the Escrow Account the Due Amount in respect of that Notified Claim (together with any accrued interest on the amount so paid but less any applicable bank charges) or, if lower, the amount standing to the credit of the Escrow Account (but less any applicable bank charges).
8.7 On the Release Date, the Buyer and the Seller shall instruct the Escrow Agent in accordance with the terms of the Escrow Letter to release to the Seller (or as the Seller otherwise directs) from the Escrow Account an amount (if any) equal to the remaining balance of the Escrow Account standing to the credit of the Escrow Account, together with any accrued interest on the amount so paid but less any applicable bank charges (if any), less the following sums:
(IA) if there are any Outstanding Claims, an amount equal to the Buyer’s reasonable estimate of the Seller’s aggregate liability in respect of those Outstanding Claims provided that the Buyer shall have obtained an opinion of a Queen’s Counsel (which shall have been disclosed to the Seller) that the relevant Outstanding Claim is not a frivolous or vexatious Claim as to its merits nor quantum of the amount proposed to be withheld; and
(B) any Due Amounts to the extent they have not been satisfied in accordance with clause 8.8 or otherwise on or before the Release Date.
8.8 If, following the Release Date, the Escrow Amount (or any part of it) continues to be held in the Escrow Account pending resolution of any Outstanding Claims, the following provisions shall apply:
(A) upon an Outstanding Claim being Resolved, the Buyer and the Seller shall, as soon as reasonably practicable, instruct the Escrow Agent to release to the Buyer (or as the Buyer shall otherwise direct) from the Escrow Account any unpaid Due Amount in respect of that Outstanding Claim (together with any accrued interest on the amount so paid but less any applicable bank charges) or, if lower, the amount standing to the credit of the Escrow Account (less any applicable bank charges); and
(B) after all Outstanding Claims have been Resolved and all Due Amounts have been paid to the Buyer in full, the Parties shall, as soon as practicable, instruct the Escrow Agent to release to the Seller (or as the Seller otherwise directs) the remaining balance (if any) standing to the credit of the Escrow Account (together with any accrued interest on the amount so paid but less any applicable bank charges).
8.9 A Notified Claim shall be deemed to be “Resolved” for the purposes of this clause 8 if it has been:
(A) agreed in writing between the Buyer and the Seller as to both liability and quantum;
(B) finally determined (as to both liability and quantum) by a court of competent jurisdiction from which there is no right of appeal, or from whose judgment the relevant party is debarred (by passage of time or otherwise) from making an appeal; or
(C) unconditionally withdrawn by the Buyer in writing.
8.10 In the event that Completion occurs, except in the event of its fraud, the Seller’s liability for all Claims under or pursuant to this Agreement shall be limited to the Escrow Amount and the Buyer’s sole recourse against the Seller becomes obligated to remit IHS Stock back to Buyer pursuant shall be against the balance standing to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion credit of the Escrow Deposit as shall have Account. If a value equal Due Amount is not satisfied in full by a payment to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit Account, nothing in this Agreement shall be calculated based upon prevent or otherwise restrict the average closing NYSE price of such stock for Buyer’s right to recover the thirty (30) business day period immediately preceding balance under the date which is two (2) days before the date of such deliveryWI Policy.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Motorola Solutions, Inc.)
Escrow. (A) At If this Agreement or any matter relating hereto shall become the Closingsubject of any litigation or controversy, pursuant 45 Buyer and Seller agree, jointly and severally, to an hold Escrow Agreement Holder free and harmless from any loss or expense, except losses or 46 expenses as may arise from Escrow Holder's negligence or willful misconduct. If conflicting demands are made or notices 47 served upon Escrow Holder with respect to be entered into by this Agreement, the parties substantially expressly agree that Escrow is entitled to file a suit in 48 interpleader and obtain an order from the form Court authorizing Escrow Holder to deposit all such documents and monies with the 49 Court, and obtain an order from the court requiring the parties to interplead and litigate their several claims and rights among 50 themselves. Upon the entry of Exhibit 2.3an order authorizing such Interpleader, a portion Escrow Holder shall be fully released and discharged Buyer's Name: Capital Homes LLC ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ BUYER(S) INITIALS: / Property Address: Henderson, 89015 SELLER(S) INITIALS: / 1 from any obligations imposed upon it by this Agreement; and Escrow Holder shall not be liable for the sufficiency or correctness 2 as to form, manner, execution or validity of any instrument deposited with it, nor as to the identity, authority or rights of any 3 person executing such instrument, nor for failure of Buyer or Seller to comply with any of the Merger Consideration as provisions of any 4 agreement, contract or other instrument filed with Escrow Holder or referred to herein. Escrow Holder's duties hereunder shall be equal 5 limited to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "safekeeping of all monies, instruments or other documents received by it as Escrow Deposit")Holder, based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee for their disposition 6 in accordance with the following:
(I) terms of this Agreement. In the event that the Seller becomes obligated an action is instituted in connection with this escrow, 7 in which ESCROW HOLDER is named as a party or is otherwise compelled to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth make an appearance, all costs, expenses 8 attorney fees, and judgments ESCROW HOLDER may expend or incur in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owingsaid action, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses responsibility of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other handparties 9 hereto.
Appears in 1 contract
Sources: Vacant Land Purchase Agreement
Escrow. (Aa) At the ClosingWithin six (6) business days following execution of this Agreement, pursuant to an Escrow Agreement to be entered into by the parties shall deliver their respective closing deliveries described below into the custody of Chase Manhattan Trust Company, National Association as escrow agent ("Escrow Agent"). The Company and the Seller shall share equally in the payment of any and all fees and expenses of the Escrow Agent.
(b) The 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 Exhibit 2.3Exhibits C-1 and C-2 attached hereto (collectively, a portion the "Stock Power") for the transfer of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant Shares to the post-Closing adjustments set forth in Section 2.2(b)Company upon any Put Exercise or Call Exercise, the Escrowee shall release to Buyer that portion and (iii) an executed copy of the Escrow Deposit Agreement, substantially in the form attached hereto as Exhibit D ("Escrow Agreement") which shall have a value equal function in part as irrevocable escrow instructions to the amount by which the Merger Consideration is so reducedEscrow Agent.
(IIc) In The Company's deliveries shall include: (i) cash or cash equivalents in the event that full amount of the Buyer becomes entitled to indemnification pursuant to Section 12.2Exercise Price, the Escrowee which shall be deposited into a separate account pending release to Buyer that portion of such funds upon any Put Exercise or Call Exercise, and (ii) an executed copy of the Escrow Deposit Agreement which shall function in part as shall be equal in value irrevocable escrow instructions to such indemnificationthe Escrow Agent.
(IIId) If no claim for indemnification on The Company and the part of Buyer is outstanding Seller hereby agree that upon the expiration Escrow Agent's receipt of one (1) year following a Put Exercise Notice or a Call Exercise Notice, the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) Seller shall be released deemed to have sold, transferred and conveyed the Shares to the Seller.
(IV) If any claim(s) for indemnification on Company and the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, Company shall be made)deemed to have purchased the Shares with no additional actions being required by either party to consummate such purchase and sale, shall except as may be released to the Seller promptly after resolution of such claim(s)otherwise provided herein.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (A) At The Escrow Reserve Amount shall be deposited with the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially Agent in the form of Exhibit 2.3, a portion of escrow account (the Merger Consideration as “Escrow Account”) and shall be equal available to FIVE HUNDRED THOUSAND compensate Spectrum and Buyer ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of itself or any other Buyer Indemnitees) for Losses pursuant to the Seller, to CoreStates Bank, N.A., as escrow agent indemnification obligations of Sellers and the Stockholder. Each indemnified party (the "Escrowee")“Indemnified Party”) under this Article 9 shall use commercially reasonable efforts to notify the indemnifying party (the “Indemnifying Party”) and the Escrow Agent (for any claims against Sellers and the Stockholder) in writing (a “Claims Notice”) of a claim (a “Liability Claim”) under this Article 9 (other than Third Party Claims) promptly after the Indemnified Party has determined that a basis for such a claim exists. The Claim Notice shall state the amount of such Losses and specify in reasonable detail the material facts known to the Indemnified Party giving rise to such Liability Claim. In no event shall the failure of the Indemnified Party to so notify such Indemnifying Party of such a claim affect, impair or diminish the Indemnifying Party’s obligations under this Article 9, unless, and, if so, only to the extent that, the Indemnifying Party is actually prejudiced as a result of such failure. The Escrow Deposit Agent shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If make no claim payment for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding days pursuant to this Article 9 and the date which is two (2) days before Escrow Agreement unless the date Escrow Agent shall have received written authorization from the Stockholder to make such delivery. After the expiration of such delivery.
thirty (B30) The costsday period, fees the Escrow Agent shall make delivery of cash from the Escrow Account to Spectrum or Buyer in accordance with this Article 9 and expenses of the Escrowee shall Escrow Agreement; provided, however, that no such delivery may be borne equally by Buyer, on made if Sellers or the one handStockholder has objected in a written statement to any claim or claims made in the Claims Notice (the “Dispute Notice”), and had delivered such written statement to the Seller, on Escrow Agent prior to the other handexpiration of such thirty (30) day period.
Appears in 1 contract
Escrow. (A) At the Closing, pursuant to an Escrow Agreement to The Shares shall be entered into deposited by the parties substantially Employee in escrow either by electronic record or by stock certificate upon (or as promptly as practicable following) the form execution of Exhibit 2.3, a portion this Agreement and shall be held in escrow by the Secretary of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A.Company, as escrow agent (the "EscroweeEscrow Agent"). Upon vesting of the Shares, the Escrow Agent shall release or electronically transfer to the Employee, upon request, those Shares, which have vested (other than any withheld by the Company pursuant to Section 10(b)). In the event Shares are forfeited pursuant to Section 4 or withheld by the Company pursuant to Section 10(b), the Company shall give written notice to the Employee and to the Escrow Agent specifying the number of Forfeited Shares or Shares to be withheld. The Employee and the Company authorize the Escrow Deposit Agent to take all necessary or appropriate actions consistent with the terms of this Agreement, including the delivery to the Company of those Shares and stock powers for the Shares being forfeited or withheld by the Company. The escrow shall terminate upon the earliest of (i) the vesting and lapse of forfeiture of all Shares awarded under this Agreement, (ii) the election by the Company to waive forfeiture on all of the unvested Shares, or (iii) the election by the Company to terminate this escrow. If at the time of such termination the Escrow Agent should have in its possession any Shares owed to the Employee, the Escrow Agent shall promptly deliver such Shares to the Employee and shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereofdischarged of all further obligations hereunder. The Escrow Deposit Agent shall be held obligated only for the performance of such duties as are specifically set forth herein and disbursed may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrowee Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent or the Company shall not be liable for any act or omission in accordance good faith and in the exercise of reasonable judgment. It is understood and agreed that should any dispute arise with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant respect to the post-Closing adjustments set forth in Section 2.2(b)delivery and/or ownership or right of possession of the Shares held by the Escrow Agent hereunder, the Escrowee Escrow Agent is authorized to retain such Shares in its possession without liability to anyone all until such dispute shall release to Buyer that portion have been settled either by mutual written agreement of the Escrow Deposit as shall have parties concerned or by a value equal to final order, decree or judgment of a court of competent jurisdiction after the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim time for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The appeal has expired. All reasonable costs, fees and expenses disbursements incurred by the Escrow Agent in connection with the performance of the Escrowee its duties hereunder shall be borne equally by Buyer, the Company. Any stock certificate issued to the Employee representing unvested Shares shall have affixed thereto a legend in substantially the following form: "These shares of stock are subject to forfeiture provisions and restrictions on transfer set forth in an Award of Restricted Stock and Restricted Stock Agreement between the one handcorporation and the owner of these shares (or his or her predecessor in interest), and such Agreement is available for inspection without charge at the Selleroffice of the Secretary of the corporation." If the Shares are issued electronically rather than by a stock certificate issued to the Employee, on the electronic record reflecting the issuance of the Shares to the Employee shall bear such a legend or other handnotation.
Appears in 1 contract
Escrow. (Aa) At To provide for the Closingindemnity obligations set forth in Article VII and to provide for the return of certain shares of Parent Common Stock in the event that certain performance criteria set forth in Section 1.19 are not met, pursuant the Escrow Shares shall be deposited in escrow (the “Escrow”). The Escrow Shares shall be subject to an the terms and conditions provided herein and the Escrow Agreement to be entered into by at the parties Closing between Parent, F. D▇▇▇ ▇▇▇▇▇ Irrevocable Trust under Agreement dated August 31, 2004 (the “C▇▇▇▇ Trust”), D▇▇▇▇ ▇▇▇▇▇▇▇ and Continental Stock Transfer and Trust Company (“Continental”) (or another escrow agent acceptable to the parties), as Escrow Agent, in substantially in the form annexed hereto as Exhibit C (the “Escrow Agreement”).
(b) Any Escrow Shares that become Forfeited Shares pursuant to the operation of Exhibit 2.3Section 1.19 (due to the failure to satisfy certain performance targets provided therein) shall be removed from the Escrow, a portion shall cease to be Escrowed Shares and shall be returned to Parent, at such time such shares shall be retired by Parent.
(c) Except as provided in subsection (d) hereof (providing for certain Earned Shares to be set aside to cover the indemnification obligations of the Members as set forth in Article VII), any Escrow Shares that become Earned Shares pursuant to the operation of Section 1.19 (due to the satisfaction of certain performance targets provided therein) shall be released from the Escrow and the Escrow Agent shall deliver the Escrow Shares to the C▇▇▇▇ Trust and D▇▇▇▇ ▇▇▇▇▇▇▇, pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a).
(d) Until the date that is twelve (12) months subsequent to the Closing Date, the first 10,000,000 Earned Shares shall be equal retained in the Escrow and treated as deposited into a separate account for the purpose of setting aside certain Earned Shares for the possible satisfaction of the indemnification obligations of the C▇▇▇▇ Trust and D▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to FIVE HUNDRED THOUSAND Article VII ($500,000such account shall be referred to herein as the “Earned Shares Indemnity Escrow Account”). On the date that is twelve (12) DOLLARS (months and one day subsequent to the "Escrow Deposit")Closing Date, based upon the valuation described in Section 3.1(a) belowonly 5,000,000 Earned Shares, shall be delivered by Buyer, on behalf of retained in the Seller, to CoreStates Bank, N.A., as escrow agent (Earned Shares Indemnity Escrow Account and the "Escrowee"). The Escrow Deposit excess Earned Shares shall be held released from the Escrow and the Escrow Agent shall deliver such excess Escrow Shares to pay post-Closing adjustments the C▇▇▇▇ Trust and to indemnify against any claim which may be assertedD▇▇▇▇ ▇▇▇▇▇▇▇, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee pro rata among them in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion distribution of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration as set forth on Schedule 1.6(a). On the date that is so reduced.
eighteen (II18) In the event that the Buyer becomes entitled months subsequent to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) Article VII, the indemnity obligation of the C▇▇▇▇ Trust and (ii)) D▇▇▇▇ ▇▇▇▇▇▇▇ shall terminate under this Agreement and any shares remaining in the Earned Shares Indemnity Escrow Account shall be released from the Escrow and the Escrow Agent shall deliver the Escrow Shares to the SellerC▇▇▇▇ Trust and D▇▇▇▇ ▇▇▇▇▇▇▇, pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a). Any Earned Shares that are deposited in the Earned Shares Indemnity Escrow Account 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 Parent, at such time such shares shall be retired by Parent. Notwithstanding anything set forth in this Section 1.15(d), the indemnification provisions of Article VII, and specifically Section 7.4, and the Escrow Agreement shall control any releases of Earned Shares from the Earned Shares Indemnity Escrow Account to satisfy the Article VII indemnification obligations and the general operation and maintenance of such Account.
(IVe) If any claim(s) for indemnification Escrow Shares shall be issued and outstanding on the part balance sheet of Buyer Parent and it is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution intention of the parties hereto that such shares be legally outstanding claim(s) and payment in respect thereof, if any is owing, under Delaware law. All dividends payable on the Escrow Shares shall be madedistributed to the C▇▇▇▇ Trust and D▇▇▇▇ ▇▇▇▇▇▇▇ pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a), . The C▇▇▇▇ Trust and D▇▇▇▇ ▇▇▇▇▇▇▇ shall be released entitled to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from vote the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryShares. .
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Merger Agreement (Key Hospitality Acquisition CORP)
Escrow. (A) At 20.1 Escrow Agent shall hold the ClosingDownpayment and all interest accrued thereon, pursuant to an Escrow Agreement to be entered into by the parties substantially if any, in the form of Exhibit 2.3escrow, a portion and shall dispose of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Downpayment only in accordance with the followingprovisions of this Article 20. Unless otherwise stated herein below, all references to the Downpayment shall include such accrued interest, if any.
20.2 Escrow Agent shall deliver the Downpayment to Seller or Purchaser, as the case may be, as follows:
(Ia) In to Seller, upon completion of the event that Closing;
(b) to Seller, after receipt of Seller’s demand in which Seller certifies either that:
(i) Purchaser has defaulted under this Agreement; or
(ii) this Agreement has been otherwise terminated or canceled, and Seller is thereby entitled to receive the Downpayment, 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 20.3, 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) Seller becomes obligated has defaulted under this Agreement, or
(ii) this Agreement has been otherwise terminated or canceled, and Purchaser is thereby entitled to remit IHS Stock back receive the Downpayment, 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 Buyer pursuant Seller in accordance with Section 20.3, nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon delivery of the Downpayment, Escrow Agent shall be relieved of all liability hereunder with respect to the post-Closing adjustments set forth in Section 2.2(b)Downpayment. Escrow Agent shall deliver the Downpayment, at the Escrowee shall release to Buyer that portion election of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes party entitled to indemnification pursuant to Section 12.2receive the same, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.by:
Appears in 1 contract
Escrow. (Aa) At 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 Closing"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 Escrow Agreement invoice by Consultant for the work in question. Simultaneously with the delivery of any such request to be entered into Escrowee, Seller shall furnish a copy thereof to Purchaser. Within ten (10) days of its receipt of any such request, accompanied by the parties substantially in materials specified above, Escrowee shall release the form requested amount to Seller.
(b) Upon Seller's payment and performance of Exhibit 2.3all of its obligations under Sections 3 and 4 above, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS Seller may furnish Escrowee with notice (the "Escrow DepositRelease Notice"), based upon ) of its entitlement to the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf release of the Seller, to CoreStates Bank, N.A., Escrow or so much thereof as remains in escrow agent (the "EscroweeEscrow Balance"). The Escrow Deposit Escrowee, promptly following its receipt thereof, shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance furnish Purchaser with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion a copy of the Escrow Deposit as Release Notice. Purchaser may, within ten (10) days of its receipt of the Escrow Release Notice, object to the release of the Escrow Balance upon notice to Escrowee. If Purchaser fails to object to such release in the time and in the manner hereinbefore prescribed, Purchaser hereby authorizes Escrowee to release the Escrow Balance to Seller. If Purchaser objects to such release in the time and in the manner hereinbefore prescribed, the provisions of Section 7(c) shall have a value apply.
(c) Notwithstanding any contrary provision contained in this Agreement, Seller shall not be responsible for the expenditure of in excess of an amount equal to the amount by which Escrow (or the Merger Consideration is so reduced.
(IIEscrow Balance, as the case may be) In in the event that payment and performance of its obligations under this Agreement. Upon the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion disbursement of the Escrow Deposit as entire amount of the Escrow, Seller shall have no further obligations under this Agreement or otherwise with respect to the environmental condition of the Premises. Upon a default by Seller in the payment or performance of its obligations hereunder, which default occurs prior to the disbursement of the entire amount of the Escrow, Purchaser's sole remedy shall be equal in value to such indemnification.
(III) If no a claim for indemnification damages on account thereof, not to exceed the part Escrow Balance. Purchaser's sole recourse for the recovery of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) such damages shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit Balance, it being understood that Seller shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryhave no personal liability therefor.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Sale Purchase Agreement (Wellsford Real Properties Inc)
Escrow. Unless Purchaser is a Section 2.1(c)(iii) Purchaser, concurrent with the signing hereof, (i) each Purchaser has (A) At deposited the ClosingSubscription Amount with American Stock Transfer & Trust Company, LLC, as Escrow Agent (“AST” and, collectively with any Custodians, the “Escrow Agent”), pursuant to an that certain Escrow Agreement to be entered into by the parties substantially (in the form of attached hereto as Exhibit 2.3I) between the Company and AST (as it may be amended or otherwise modified from time to time, a portion of the Merger Consideration as shall be “AST Escrow Agreement”, and collectively with any Custodian Agreements, the “Escrow Agreement”) or (B) segregated cash equal to FIVE HUNDRED THOUSAND the Subscription Amount in an account with a custodian ($500,000a “Custodian”) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, of funds held on behalf of an “investment company” under the Seller, to CoreStates Bank, N.A.Investment Company Act of 1940, as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be assertedamended, pursuant to Sections 12.2 binding escrow instructions (“Custodian Agreements”) for release of such funds by such Custodian to the Company, at the direction of the Company, upon the satisfaction of conditions set forth in the AST Escrow Agreement, and 12.4 hereof. The Escrow Deposit (ii) the Company has issued instructions to the Transfer Agent authorizing the issuance, in book-entry form, of the number of Preferred Shares specified on such Purchaser’s signature page hereto (or, if the Company and such Purchaser shall be held and disbursed by have agreed, as indicated on such Purchaser’s signature page hereto, that such Purchaser will receive Preferred Shares in certificated form, then the Escrowee Company shall instead instruct the Transfer Agent to issue such specified Preferred Shares in accordance certificated form (the “Stock Certificates”), or as otherwise set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto) concurrent with the following:
(I) In Escrow Agent’s release of the event that Subscription Amount to the Seller becomes obligated to remit IHS Stock back to Buyer Company pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedAgreement.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Securities Purchase Agreement (Oriental Financial Group Inc)
Escrow. (Aa) At Participant hereby authorizes and directs the Closingsecretary of the Company, or such other person designated by the Company from time to time, to transfer any Unreleased Shares which are forfeited pursuant to Section 2 above from Participant to the Company.
(b) To insure the availability for delivery of Participant’s Unreleased Shares upon forfeiture under Section 2, Participant hereby appoints the secretary, or any other person designated by the Company as escrow agent from time to time, as its attorney-in-fact to sell, assign and transfer unto the Company, such Unreleased Shares, if any, forfeited by Participant pursuant to Section 2 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 certificate(s) representing the Unreleased Shares, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. The Unreleased Shares and stock assignment shall be held by the secretary in escrow, pursuant to an the Joint Escrow Instructions of the Company and Participant attached as Exhibit B hereto, until the Shares are forfeited as provided in Section 2, until such Unreleased Shares are fully released from the Forfeiture Restriction, or until such time as this Agreement no longer is in effect. Upon release of the Unreleased Shares from the Forfeiture Restriction, the escrow agent shall promptly deliver to be entered into by Participant the parties substantially certificate or certificates representing such Shares in the form of Exhibit 2.3escrow agent’s possession belonging to Participant, a portion of and the Merger Consideration as escrow agent shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (discharged of all further obligations hereunder; provided, however, that the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, escrow agent shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., nevertheless retain such certificate or certificates as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, if so required pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer other restrictions imposed pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedthis Agreement.
(IIc) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2The Company, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owingor its designee, shall not be made), shall be released liable for any act it may do or omit to do with respect to holding the Seller promptly after resolution Shares in escrow and while acting in good faith and in the exercise of such claim(s)its judgment.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. Upon execution of this Agreement, Pledgor shall deposit with Escrow Agent the Pledged Shares, along with the aforesaid Assignment (Aall of which items shall hereinafter be referred to as the "Pledged Documents") At to be held in escrow for future delivery as follows:
a. Escrow Agent shall deliver the ClosingPledged Documents to Pledgee within ten (10) days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the Note and all periods of time within which to cure such default have expired;
(ii) Pledgee is accelerating the entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of said affidavit. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has not delivered the Pledged Documents pursuant to an subparagraph a above, then Escrow Agreement Agent shall deliver the Pledged Documents to be entered into by the parties substantially in the form of Exhibit 2.3, a portion Pledgor within ten (10) days after receipt of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (original of the Note marked "Escrow Deposit"), based upon paid in full," accompanied by instructions from Pledgor indicating that said Note has been paid in full and the valuation described in Section 3.1(a) below, Pledged Documents shall be delivered by Buyer, on behalf to Pledgor at the address specified therein. Upon such delivery of the SellerPledged Documents, Escrow Agent's duties hereunder shall terminate. Pledgee agrees to CoreStates Bankdeliver the Note to Pledgor marked "paid in full," immediately upon satisfaction thereof.
c. Upon execution of this Agreement, N.A.Pledgor shall deliver to the Escrow Agent Stock Certificate Number 030121, representing Ten Million Six Hundred Sixty Six Thousand Six Hundred Ten (10,666,610) shares of common stock of Centrack International, Inc. Pledgor shall further execute an endorsement/assignment of said Certificate appointing the Escrow Agent as escrow agent Attorney to effectuate division and reissuance of same as follows:
1. One Million (the "Escrowee"). The Escrow Deposit shall 1,000,000) shares to Pledgor, same to be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed in escrow by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer Escrow Agent pursuant to the post-Closing adjustments set forth in Section 2.2(b)terms of this Agreement.
2. Thirty Thousand (30,000) shares to the Pledgee as consideration for the loan being extended pursuant to the Promissory Note attached hereto.
3. Nine Million Six Hundred Sixteen Thousand Six Hundred Ten (9,636,610) shares which shall be forwarded to Pledgor upon receipt by the Escrow Agent. Nothing hereinabove withstanding to the contrary, until such time as the above division of the stock is accomplished, the Escrowee total number of shares shall release to Buyer that portion constitute collateral for payment of the obligations pursuant to this Agreement. Pledgor and Pledgee hereby acknowledge that the Escrow Deposit Agent is making no representations as to right or legality pertaining to the above division of the stock or its sale in the event of the default, and Pledgor and Pledgee each agree that Escrow Agent shall have a value equal no liability resulting from the inability to accomplish the terms of this Pledge Agreement due to the amount by which inability to divide, transfer or sell the Merger Consideration is so reducedstock. Pledgor and Pledgee each agree to indemnify and hold Escrow Agent harmless in this regard and as otherwise provided for in this Agreement.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Centrack International Inc)
Escrow. (A) At the Closing, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). A. The Escrow Deposit shall be held in escrow by Escrow Agent upon the following terms and conditions:
(i) Escrow Agent shall deposit the Deposit in an interest-bearing account or invest the Deposit in a money market or monetary fund;
(ii) Escrow Agent shall deliver to pay post-Closing adjustments Seller the Deposit (together with all interest thereon, if any) at and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by upon the Escrowee Closing; and
(iii) If this Agreement is terminated in accordance with the followingterms hereof, or if the Closing does not take place under this Agreement by reason of the failure of either party to comply with such party's obligations hereunder, Escrow Agent shall pay the Deposit (together with all interest thereon, if any) to Seller and/or Purchaser, as the case may be, in accordance with the provisions of this Agreement.
B. It is agreed that:
(Ii) The duties of Escrow Agent are only as herein specifically provided, and, except for the provisions of Article 16(C) hereof, are purely ministerial in nature, and Escrow Agent shall incur no liability whatsoever except for its own willful misconduct or gross negligence;
(ii) Escrow Agent shall not be liable or responsible for the collection of the proceeds of any checks used to pay the Deposit;
(iii) In the event that the Seller becomes obligated performance of its duties hereunder, Escrow Agent shall be entitled to remit IHS Stock back rely upon any document, instrument or signature believed by it to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion be genuine and signed by either of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.other parties or their successors;
(IIiv) In Escrow Agent may assume that any person purporting to give any notice of instructions in accordance with the event that the Buyer becomes entitled provisions hereof has been duly authorized to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.do so;
(IIIv) If no claim for indemnification Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless in writing and signed by it, Seller and Purchaser;
(vi) Except as otherwise provided in Article 16(C) hereof, Seller and Purchaser shall jointly and severally reimburse and indemnify Escrow Agent for, and hold it harmless against, any and all loss, liability, costs or expenses in connection herewith, including reasonable attorneys' fees and disbursements, incurred without willful misconduct or gross negligence on the part of Buyer Escrow Agent arising out of or in connection with its acceptance of, or the performance of its duties and obligations under, this Agreement, as well as the 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 Agent 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. If a successor Escrow Agent is outstanding upon 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 expiration Deposit. Escrow Agent, except (i) in the event of one (1) year following the Closing DateClosing, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to in connection with a Termination Notice by Purchaser in accordance with Article 10 E. or (iii) if the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer Deposit is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock required to be delivered to Buyer from 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 be calculated based upon not make any delivery, but in such event Escrow Agent may hold the average closing NYSE price same until receipt by Escrow Agent of an authorization in writing, signed by all of the parties having any interest in such dispute, directing the disposition of the Deposit (together with all interest thereon, if any), or in the absence of such stock 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 Article 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 the such determination are not initiated within thirty (30) business day period immediately preceding days after the date which is two (2) days before the date Escrow Agent shall have received written notice of such delivery.
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 (B) The coststogether with all interest thereon, fees if any), with a court of competent jurisdiction pending such determination. Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding including, without limitation, reasonable attorneys' fees and disbursements, by the Escrowee 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 borne equally split, pro rata, between Seller and Purchaser, in inverse proportion to the amount of the Deposit received by Buyereach. Upon making delivery of the Deposit (together with all interest thereon, on if any), in the one handmanner provided in this Agreement, Escrow Agent shall have no further obligation or liability hereunder.
D. Escrow Agent has executed this Agreement solely to confirm that Escrow Agent has received the Deposit (if the Deposit is made by check, subject to collection) and will hold the SellerDeposit, on in escrow, pursuant to the other handprovisions of this Agreement.
Appears in 1 contract
Sources: Sale Purchase Agreement (Ilm Ii Senior Living Inc /Va)
Escrow. (Aa) At the Closing, Parent shall hold back and retain from any payments to be made to the Company Securityholders, pursuant to Section 2.8(a), Section 2.8(b) and Section 2.12, an aggregate amount equal to $2,550,000 (the “Escrow Amount”) as a source for effecting the payment and discharge of any indemnification obligations of the Company Securityholders to the Buyer Indemnified Parties as set forth in Section 8.1 hereof. The Escrow Amount shall be deposited into an escrow account, and shall be payable, less any pending or paid indemnification claims asserted pursuant to Section 8.6 on or prior to such date, on the Release Date pursuant to the terms of an escrow agreement (the “Escrow Agreement”), which Escrow Agreement to (x) shall be entered into by on the parties Closing Date among Parent, the Stockholders’ Representative and an escrow agent to be mutually agreed upon between Parent and the Stockholders’ Representative (the “Escrow Agent”) and (y) shall be substantially in the form of Exhibit 2.3, a portion E attached hereto.
(b) The adoption of this Agreement and the approval of the Merger Consideration as by the Company Securityholders shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf constitute approval of the SellerEscrow Agreement and all of the arrangements relating thereto, to CoreStates Bank, N.A., as escrow agent (including the "Escrowee"). The placement of the Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee Amount in accordance with the following:escrow.
(Ic) In Each Company Securityholder shall share pro rata in the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments Escrow Amount as set forth in this Section 2.2(b2.9(c), the Escrowee shall release . Each Closing Payment to Buyer that portion of the Escrow Deposit as shall have a value equal be made to the amount by which the Merger Consideration is so reduced.
Common Securityholders (IIother than with respect to Dissenting Shares) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.22.8(a), and each payment of Option Consideration to be made to the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims Option Holders pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made2.12(a), shall be released reduced by an amount equal to the Seller promptly after resolution product of (i) the number of shares of Common Stock and/or the number of shares of Common Stock underlying the Options held by such claim(sholder immediately prior to the Effective Time multiplied by (ii) the Escrow Amount multiplied by (iii) the Common Escrow Percentage, divided by the sum of the aggregate number of shares of Common Stock outstanding immediately prior to the Effective Time and the aggregate number of shares of Common Stock underlying the Options outstanding immediately prior to the Effective Time (including any shares of Common Stock issuable upon the exercise of Options exercised immediately prior to the Closing or Preferred Stock converted immediately prior to the Closing). Each Closing Payment to be made to the Preferred Stockholders (other than with respect to Dissenting Shares) pursuant to Section 2.8(b) shall be reduced by an amount equal to the product of (i) the number of shares of Preferred Stock held by such holder immediately prior to the Effective Time multiplied by (ii) the Escrow Amount multiplied by (iii) the Preferred Escrow Percentage, divided by the aggregate number of shares of Preferred Stock outstanding immediately prior to the Effective Time.
(Vd) The value Each disbursement of any IHS Stock to be delivered to Buyer from the Escrow Deposit Amount to Company Securityholders pursuant to the terms of the Escrow Agreement shall be calculated based upon paid (i) to each Common Securityholder (other than with respect to Dissenting Shares) in an amount equal to the average closing NYSE price product of (A) the number of shares of Common Stock and/or the number of shares of Common Stock underlying the Options held by such stock for holder immediately prior to the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
Effective Time multiplied by (B) The coststhe amount of such disbursement multiplied by (C) the Common Escrow Percentage, fees and expenses divided by the sum of the Escrowee shall be borne equally by Buyer, on aggregate number of shares of Common Stock outstanding immediately prior to the one handEffective Time and the aggregate number of shares of Common Stock underlying the Options outstanding immediately prior to the Effective Time (including any shares of Common Stock issuable upon the exercise of Options exercised immediately prior to the Closing or Preferred Stock converted immediately prior to the Closing), and (ii) to each Preferred Stockholder (other than with respect to Dissenting Shares) in an amount equal to the Sellerproduct of (A) the number of shares of Preferred Stock held by such holder immediately prior to the Effective Time multiplied by (B) the amount of such disbursement multiplied by (C) the Preferred Escrow Percentage, on divided by the other handaggregate number of shares of Preferred Stock outstanding immediately prior to the Effective Time.
Appears in 1 contract
Escrow. (A) At Escrow Agent shall hold the Closing▇▇▇▇▇▇▇ Money, pursuant to an Escrow Agreement to be entered into by the parties substantially together with all interest earned thereon, in the form of Exhibit 2.3its interest bearing escrow account, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
(Ia) In Escrow Agent shall hold the event ▇▇▇▇▇▇▇ Money, together with all interest earned thereon, in Escrow Agent's escrow account, and shall cause the ▇▇▇▇▇▇▇ Money to earn interest at then prevailing insured money market rates on deposits of similar size. Escrow Agent shall have no liability for any fluctuations in the interest rate paid in respect of the ▇▇▇▇▇▇▇ Money, and is not a guarantor thereof.
(b) If Escrow Agent receives a written notice signed by both Seller and Purchaser stating that the Closing has occurred and that Seller becomes obligated is entitled to remit IHS Stock back receive the ▇▇▇▇▇▇▇ Money, Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon to Buyer pursuant Seller. If Escrow Agent receives a written notice signed by both Seller and Purchaser that this Agreement has been terminated or canceled, Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money, together with the interest thereon, as directed therein.
(c) If Escrow Agent receives a written request signed by Purchaser or Seller (the "NOTICING PARTY") stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to the post▇▇▇▇▇▇▇ Money, Credit, or that the other party hereto (the "NON-Closing adjustments NOTICING PARTY") has defaulted in the performance of its obligations hereunder, Escrow Agent shall mail (by certified mail, return receipt requested) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the ▇▇▇▇▇▇▇ Money by written notice of objection delivered to and received by Escrow Agent not more than ten (10) Business Days after the date of Escrow Agent's mailing of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a written notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a written notice of objection within the time herein prescribed, Escrow Agent shall not comply with any requests or demands on it and shall continue to hold the ▇▇▇▇▇▇▇ Money, together with any interest earned thereon, until Escrow Agent receives either (i) a written notice signed by both Seller and Purchaser stating who is entitled to the ▇▇▇▇▇▇▇ Money (and interest) or (ii) a final order of a court of competent jurisdiction directing disbursement of the ▇▇▇▇▇▇▇ Money (and interest) in a specific manner, in either of which events Escrow Agent shall then disburse the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in subdivision (i) or (ii) above.
(d) Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Seller and/or Purchaser, or from Seller and/or Purchaser to Escrow Agent, provided for in this PARAGRAPH 14 shall be addressed to the party to receive such notice at its notice address set forth in Section 2.2(bPARAGRAPH 12 above (with copies to be similarly sent to the additional persons therein indicated), but the Escrowee shall release provisions of PARAGRAPH 12 relating to Buyer that portion the manner of giving notices and the Escrow Deposit as effective dates thereof shall have a value equal no application to the amount by which the Merger Consideration is so reducedprovisions of this PARAGRAPH 14.
(IIe) In Notwithstanding the event foregoing, if Escrow Agent shall have received a written notice of objection as provided for in PARAGRAPH 14 (C) above within the time therein prescribed, or shall have received at any time before actual disbursement of the ▇▇▇▇▇▇▇ Money a written notice signed by either Seller or Purchaser disputing entitlement to the ▇▇▇▇▇▇▇ Money or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the Buyer becomes entitled parties hereto over entitlement to indemnification pursuant the ▇▇▇▇▇▇▇ Money (whether or not litigation has been instituted), Escrow Agent shall have the right, upon written notice to Section 12.2both Seller and Purchaser, (i) to deposit the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, with the Clerk of the Court in which any litigation is pending and/or (ii) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the Escrowee shall release to Buyer that portion depositing of the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party, and thereupon Escrow Deposit as Agent shall be equal in value to such indemnificationreleased of and from all liability hereunder except for any previous gross negligence or willful misconduct.
(IIIf) If no claim Escrow Agent is acting hereunder without charge as an accommodation to Purchaser and Seller, it being understood and agreed that Escrow Agent shall not be liable for indemnification any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on the part behalf of Buyer is outstanding upon the expiration of one (1) year following the Closing Dateany party has been authorized to do so. Escrow Agent shall not be liable for, and Purchaser and Seller hereby jointly and severally agree to indemnify Escrow Agent against, any remaining loss, liability or expense, including reasonable attorney's fees (either paid to retained attorneys or, representing the fair value of legal services rendered by Escrow Deposit (less Agent to itself), arising out of any amounts offset for claims pursuant to Section 2.3(a)(i) dispute under this Agreement, including the cost and (ii)) shall be released to the Sellerexpense of defending itself against any claim arising hereunder.
(IVg) If Escrow Agent may act or refrain from acting in respect of any claim(smatter referred to in this Agreement in full reliance upon and with the advice of counsel selected by it (including any member of its firm) for indemnification on the part of Buyer is (are) outstanding and shall be fully protected in so acting or refraining from acting upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution advice of such claim(s)counsel.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (A) At the Closing, Purchaser shall deliver to ▇▇▇▇▇ Fargo, N.A. (the “Escrow Agent”) an amount equal to Five Million One Hundred Thousand and No/100ths Dollars ($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 an the terms of the Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion as of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS Closing Date (the "“Escrow Deposit"), based Agreement”) in a form to be agreed upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the between Purchaser and Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit Funds shall be held to pay post-Closing adjustments governed by and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee in accordance with the following:
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 (Ii) In the event that the Seller becomes obligated any Working Capital Adjustment payable to remit IHS Stock back to Buyer Purchaser pursuant to Section 1.4(f), above (to the postextent such amounts have not been paid by Seller within the ten-Closing adjustments day period set forth in Section 2.2(b1.4(f)), or (ii) claims for indemnification under Section 9.1, in each case subject to the Escrowee shall release to Buyer that portion of procedures and limitations set forth herein or in the Escrow Deposit as Agreement. The Escrow Agent shall have a value equal deliver to Seller the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification Funds held in escrow on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before years from the date 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 such delivery.
this Section 2.11. Purchaser and Seller shall each be responsible for fifty percent (B50%) The costs, fees of all costs and expenses of the Escrowee Escrow Agent. Seller shall remain in existence and in good standing so long as the Escrow Agreement remains in effect. Notwithstanding the foregoing, within five (5) 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 aggregate amount of any outstanding and unresolved claims received by the Escrow Agent on or prior to the first anniversary of Closing minus the aggregate amount released from the Escrow Account to Purchaser Indemnitees prior to the first anniversary of Closing. All parties hereto agree for all Tax purposes that: (i) Purchaser shall be borne equally treated as the owner of the Escrow Funds, or any portion thereof, shall be allocable to Purchaser pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8, (ii) if and to the extent any amount of the Escrow Funds is actually distributed to Seller, interest may be imputed on such amount, as required by BuyerSection 483 or 1274 of the Code, on (iii) Seller’s right to the one handEscrow Funds under this Agreement shall be treated as installment obligations for purposes of Section 453 of the Code, and (iv) in no event shall the Seller, on aggregate payments under the other handEscrow Funds to Seller exceed $5,800,000. Clause (iv) of the preceding sentence is intended to ensure that the right of Seller to the Escrow Funds is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulation promulgated thereunder. No party hereto shall take any action or filing position for Tax purposes inconsistent with the foregoing.
Appears in 1 contract
Escrow. (A) At the Closing, pursuant to an Escrow Notwithstanding any provision of this Agreement to be entered into by the parties substantially in contrary, the form of Exhibit 2.3, a portion Closing of the Merger Consideration as Transaction contemplated hereunder shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit")completed in escrow, based upon the valuation described in Section 3.1(a) belowwith ▇▇▇▇▇▇▇▇ ▇▇▇▇, shall be delivered by BuyerEsq., on behalf of the Seller, to CoreStates Bank, N.A., acting as escrow agent (the "EscroweeESCROW Agent"). The Escrow Deposit shall be held to pay post-Closing adjustments , and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit funds delivered in escrow shall be held and disbursed disposed of by the Escrowee Escrow Agent in accordance with the followingterms 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:
(Ia) In lieu of delivering the event that Share Purchase Price to the Seller becomes obligated Company as provided for in Section 1.3, Buyer shall, at or prior to remit IHS Stock back Closing, deliver or cause to Buyer be delivered to Escrow Agent for deposit into escrow pursuant to the post-Closing adjustments set forth in Section 2.2(b)Escrow Agreement, the Escrowee shall release to Buyer that portion amount of $425,000 representing the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reducedShare Purchase Price.
(IIb) In At such time as all of the event 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 Buyer shall provide written notice to Escrow Agent directing that the Buyer becomes entitled to indemnification pursuant to Section 12.2escrow be disposed of in accordance with the Escrow Agreement and the terms of this Agreement; provided, however, that the Escrowee Escrow Agent shall release to Buyer that portion retain $50,000 of the Escrow Deposit as shall be equal Share Purchase Price in value escrow to such indemnification.
satisfy any indemnification obligations of Yuan under this Agreement and any indemnification obligations of the ASAP Subsidiary and Yuan under the Indemnity Agreement (III"Indemnity Escrow"). On the date six months (6) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year months following the Closing Date, any remaining to the extent that the Indemnity Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) has not been and (ii)) is not the subject of an indemnification claim under this Agreement and the Indemnity Agreement, the Indemnity Escrow shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all ASAP Subsidiary together with accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s)any.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cyber Merchants Exchange Inc)
Escrow. (A) At the Closing, pursuant The parties hereto agree that [Israeli escrow agent agreed to an Escrow Agreement by Company to be entered into by inserted upon Effective Date] shall act as escrow agent in connection with the Source Code for the purposes set forth herein ("Escrow Agent"). Within ten (10) Business Days after the Effective Date the parties substantially will enter into an escrow agreement acceptable to Company (including without limitation sufficient levels of verification) in strict compliance with the form of Exhibit 2.3, a portion terms hereof and governed by Israeli Law ("Escrow Agreement"). Within five (5) days after the Acceptance of the Merger Consideration System or any part thereof, Contractor shall deposit into escrow with the Escrow Agent, under the terms of this Agreement and the Escrow Agreement, the Source Code, in such media as acceptable to Company, and shall be equal update such Source Code to FIVE HUNDRED THOUSAND include all modifications, improvements, updates and upgrades thereto and to bring it current - upon each Change Request, Acceptance and new release but in any event not less than once per calendar quarter. Upon a Release Event ($500,000as hereinafter defined) DOLLARS Company and its designees shall obtain and Contractor hereby grants a perpetual, irrevocable, nonexclusive, nontransferable fully paid, royalty free license, with the right to sublicense (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, solely to contractors acting on behalf of the SellerCompany), to CoreStates Bankuse, N.A.modify, enhance and develop the Source Code as required to continue to enjoy its rights under this Agreement in respect of the System, including for the purpose of the continued receipt of the Support Services. Release Event: (a) Contractor materially breaches it obligations under this Agreement and such breach is not remedied within (30) days after written notice thereof from Company; (b) Contractor materially fails to provide Support Services under the terms hereof and such failure is not remedied within twenty (20) days after written notice thereof from Company; (c) Contractor (and/or its licensor) becomes the subject of any Bankruptcy Event. All escrow agent (the "Escrowee"). The Escrow Deposit related fees shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereofborne by Contractor. The Escrow Deposit Any dispute regarding the occurrence of a Release Event shall be held and disbursed determined solely by the Escrowee Board of Directors of Company. Provided that Contractor so notifies Company in accordance writing, within five 5 days after the Effective Date, Contractor shall deposit the Source Code with Company, in lieu of the deposit with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments Escrow Agent as set forth in this Section 2.2(b)14.4, and the Escrowee same terms and conditions set forth above shall release to Buyer that portion of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment apply in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses including in respect of the Escrowee shall be borne equally by Buyerapplicable media, updates, rights granted to Company and Release Event and further provided that Company or any third party on its behalf may conduct verification of the one hand, and the Seller, on the other handSource Code at levels at Company's sole discretion.
Appears in 1 contract
Escrow. In order to facilitate the post-closing adjustments described in Section 2(d) above and the indemnification provisions described in Section 8 below, the Parties agree that if the Buyer prepays the entire principal amount of, and all interest then due under the Promissory Note (Athe "Prepayment Amount") At within ninety (90) days of the ClosingClosing Date (excluding any set-off pursuant to Section 14 of the Promissory Note), the Buyer shall deposit $1,700,000 of the Prepayment Amount (which amount shall not include any set-off pursuant to Section 14 of the Promissory Note which has not been finally settled) with an escrow agent to be mutually agreed upon by the Buyer and the Sellers' Representative pursuant to an Escrow Agreement escrow agreement to be mutually agreed upon and entered into by the parties substantially in Buyer and the form of Exhibit 2.3Sellers' Representative; provided, a portion of however, that such escrow agreement shall provide that (i) the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent shall not distribute any funds from the escrow account created thereby except pursuant to written instructions jointly executed by the Buyer and the Sellers' Representative or pursuant to a final court order, and (ii) $850,000 (less the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against amount (A) of any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed for indemnification by the Escrowee in accordance with the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b)8 below which has not been finally settled, the Escrowee shall release to Buyer that portion (B) of the Escrow Deposit as shall have a value equal to the amount any finally settled claim for indemnification by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.28 below which has been paid out of such escrow or has not been paid, and (C) owing to the Escrowee shall release Buyer pursuant to Buyer that portion Section 2(d) above which has been paid out of such escrow or has not been paid) of the Escrow Deposit as funds in the escrow account shall be equal distributed on the first anniversary of the Closing Date and the remainder of the funds in value to such indemnification.
the escrow account (IIIless the amount (X) If no of any claim for indemnification by the Buyer pursuant to Section 8 below which has not been finally settled, (Y) of any finally settled claim for indemnification by the Buyer pursuant to Section 8 below which has not been paid, and (Z) owing to the Buyer pursuant to Section 2(d) above which has not been paid) shall be distributed on the part second anniversary of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
Appears in 1 contract
Escrow. (A) At Anything herein contained to the Closingcontrary notwithstanding, pursuant to an Escrow Agreement to be entered into by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as Down Payment shall be equal to FIVE HUNDRED THOUSAND paid by wire transfer into an account designated by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Escrow Agent ($500,000) DOLLARS (hereinafter called the "Escrow DepositAgent"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit and shall be held in escrow in a segregated interest bearing account it maintains with North Fork Bank (The Down Payment together with all such interest, if any, is hereinafter referred to pay post-Closing adjustments and as the "Escrow Funds".) It is further agreed that the Escrow Funds shall not be released by said Escrow Agent except upon the mutual written consent of both parties hereto, or, if such consent is not obtained, the Escrow Agent may deliver such Escrow Funds to indemnify against any claim which may be asserted, the party entitled to same pursuant to Sections 12.2 and 12.4 hereofthe provisions of this Contract, provided not less than five (5) business days' prior written notice is given to the parties. The If after sending such notice, the Escrow Deposit Agent receives written notice from either party disputing the intended disposition of the Escrow Funds as indicated in said notification from the Escrow Agent, then notwithstanding anything herein contained to the contrary, the Escrow Agent shall be held and disbursed retain such Escrow funds until the dispute is settled, as evidenced by mutual written agreement of the Escrowee in accordance with parties, or the following:
(I) Escrow Agent is instructed otherwise by a final judgment of a court of competent jurisdiction. In the event of such dispute, the Escrow Agent shall also have the right to deposit said Escrow Funds into a court of competent jurisdiction and from and after the date such deposit is made and notice thereof is given to Purchaser and Seller the Escrow Agent shall be released and discharged of all obligations with respect thereto.
(1) that the Escrow Agent may deposit for collection in the Escrow Agent's escrow bank account all checks tendered or wire transfers received in payment of the Down Payment without such deposit constituting in any way an acceptance by the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to of the post-Closing adjustments set forth Purchaser's offer contained in Section 2.2(b), this Contract; (2) that the Escrowee Escrow Agent shall release to Buyer that portion not be liable for the disposition of the Escrow Deposit as Funds, except in the case of its gross negligence or willful disregard of the provisions of his Contract; (3) that no compensation shall have a value equal be paid to the amount by which the Merger Consideration is so reduced.
Escrow Agent for its services performed hereunder; and (II4) In the event that the Buyer becomes entitled service by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. as Escrow Agent hereunder shall not be a bar to indemnification pursuant to Section 12.2such attorney's acting as attorney for the Seller in connection with the transactions contemplated by this Contract. Seller and Purchaser hereby indemnify and hold Escrow Agent harmless against any loss, the Escrowee shall release to Buyer that portion cost, liability, judgment, claim or other expense whatsoever (including reasonable attorneys' fees) incurred or arising out of the performance of its duties hereunder, except claims arising from Escrow Deposit as shall be equal in value to such indemnificationAgent's gross negligence or willful breach of its duties.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
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Escrow. (A) At the U.S. Closing, pursuant to an Escrow Agreement to be entered into $12,000,000 of the Purchase Price otherwise payable by the parties substantially in Buyer to the form Sellers shall be delivered by the Buyer to the Escrow Agent for the purpose of Exhibit 2.3, a portion securing the obligations of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000Sellers under Section 2.6(f) DOLLARS and Article VIII hereof. Such amount (the "Escrow DepositFund"), based upon the valuation described in Section 3.1(a) below, shall be delivered held by Buyer, on behalf the Escrow Agent pursuant to the terms of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee")Escrow Agreement. The Escrow Deposit Fund shall be held as a trust fund and shall not be subject to pay post-Closing adjustments any lien, attachment, trustee process or any other judicial process of any creditor of any party, and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by solely for the Escrowee purposes and in accordance with the following:
terms of the Escrow Agreement. At the U.S. Closing, $5,000,000 of the Purchase Price otherwise payable by the Buyer to the Sellers shall be delivered by the Buyer to the Escrow Agent for the purpose of securing the obligation of the Buyer to pay the Purchase Price for the France Assets at the France Closing and of the Sellers to proceed with the France Closing under Section 2.3(c) hereof. Of such amount (I) In the event that "BC France Escrow Fund"), $3,900,000 shall evidence the Seller becomes obligated portion of the Purchase Price attributable to remit IHS Stock back the France Assets and $1,100,000 shall represent additional Purchase Price payable with respect to Buyer the remaining Acquired Assets which shall be held by the Escrow Agent in order to insure the consummation of the France Closing. The BC France Escrow Fund shall be held by the Escrow Agent pursuant to the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion terms of the BC France Escrow Deposit Agreement. The BC France Escrow Fund shall be held as a trust fund and shall have a value equal 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 amount by which purposes and in accordance with the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion terms of the BC France Escrow Deposit as shall be equal Agreement. PAGE Transaction Taxes. Any and all federal, state, county, local or foreign sales, use, value added, excise, stamp, transfer, registration and other Taxes not in value to such indemnification.
(III) If no claim for indemnification on the part nature of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costsincome taxes, fees and expenses duties (including any interest, additions to tax and penalties with respect thereto) and any and all transfer, registration, recording or similar fees and charges imposed in connection with the consummation of the Escrowee transactions contemplated by this Agreement (collectively, "Transfer Taxes") shall be borne equally by the Buyer, on the one hand, and the SellerSellers, jointly and severally, on the other hand.
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Escrow. (A) At On the ClosingClosing Date, pursuant Purchaser shall, on behalf of Seller, pay to an the Escrow Agreement Agent, as agent to be entered into Purchaser and Seller, in immediately available funds, to the account designated by the parties substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS Escrow Agent (the "Escrow DepositAccount"), based upon an amount equal to five percent (5%) of the valuation described Estimated Purchase Price (such amount, as it may be subsequently reduced pursuant to this Section 9.5, the "Escrow Amount"), in Section 3.1(a) below, accordance with the terms of this Agreement and the Escrow Agreement. Any payment Seller is obligated to make to any Purchaser Indemnified Parties pursuant to this Article IX shall be delivered paid first, to the extent there are sufficient funds in the Escrow Account, by Buyerrelease of funds to the Purchaser Indemnified Parties from the Escrow Account by the Escrow Agent within five (5) Business Days after the date notice of any sums due and owing is given to Seller (with a copy to the Escrow Agent pursuant to the Escrow Agreement) by the applicable Purchaser Indemnified Party and shall accordingly reduce the Escrow Amount and, on behalf second, to the extent the Escrow Amount is insufficient to pay any remaining sums due, then Seller shall be required to pay all of such additional sums due and owing to the Purchaser Indemnified Parties by wire transfer of immediately available funds within five (5) Business Days after the date of such notice. On the first anniversary of the Closing Date, the Escrow Agent shall release the Escrow Amount (to the extent not utilized to pay Purchaser for any indemnification claim) to Seller, except that the Escrow Agent shall retain an amount equal to CoreStates Bank, N.A., as escrow agent the amount of claims for indemnification under this Article IX asserted prior to such anniversary but not yet resolved (the "EscroweeUnresolved Claims"). The Escrow Deposit Amount retained for Unresolved Claims shall be held released by the Escrow Agent (to the extent not utilized to pay post-Closing adjustments and to indemnify against Purchaser for any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee such claims resolved in favor of Purchaser) upon their resolution in accordance with this Article IX. For the following:
(I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b)avoidance of doubt, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall have a value equal Amount to Seller after the amount by which first anniversary of the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification Closing Date pursuant to this Section 12.2, the Escrowee 9.5 shall release to Buyer that portion not prejudice any of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution rights of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released Purchaser Indemnified Parties to the seek indemnification from Seller promptly after resolution of such claim(s)under this Agreement.
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
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Escrow. (Aa) At the Closing, pursuant to an Escrow Agreement to be entered into by the parties Agreement, substantially in the form of attached hereto as Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS A (the "Escrow DepositAgreement"), based upon the valuation described in Section 3.1(a) below, parties shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as establish an escrow agent (the "EscroweeEscrow Fund") comprised of 62,500 of the Consideration Shares (the "Escrow Shares"). The Escrow Deposit Shares shall be held maintained in escrow for the purposes of satisfying any claims by Buyer for indemnification under Article 10 and the Escrow Agreement until the expiration of one year from the Closing Date (the "Escrow Period").
(b) Upon expiration of the Escrow Period, and subject to pay post-Closing adjustments the terms of Section 3.3(c) herein, Article 10 herein and the Escrow Agreement, the escrow agent under the Escrow Agreement (the "Escrow Agent") shall deliver or cause to indemnify against any be delivered to Seller a certificate representing the number of shares of Buyer's Common Stock comprising the Escrow Shares.
(c) If upon expiration of the Escrow Period, Buyer shall have asserted a claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee for indemnity in accordance with the following:
(I) In Escrow Agreement and such claim is pending or unresolved at the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b)time of such expiration, the Escrowee Escrow Agent shall release retain in escrow, and withhold from delivery to Buyer that portion Seller the value of the Escrow Deposit as shall have a value equal to asserted amount of the amount by which the Merger Consideration claim until such matter is so reduced.
(II) In the event finally resolved. If it is finally determined that the Buyer becomes is entitled to indemnification pursuant to Section 12.2recover on account of such claim, the Escrowee Escrow Agent shall release to Buyer that portion of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock deliver or cause to be delivered to Buyer from Escrow Shares in the amount due and payable with respect to such claim. The remainder of the Escrow Deposit Shares, if any, following such delivery to Buyer in accordance with this Section 3.3(c) and the Escrow Agreement, shall be calculated based upon delivered to Seller pursuant to this Agreement. For purposes of this Section 3.3(c), a claim will be deemed to have been finally resolved only as provided in the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such deliveryEscrow Agreement.
(Bd) The costs, fees and expenses right to receive the Escrow Shares upon expiration of the Escrowee shall be borne equally by Buyer, on Escrow Period is an integral part of the one handPurchase Price, and shall not be transferable or assignable by, but shall inure to the benefit of the successors, representatives, or estate of, Seller, on the other hand.
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Escrow. As the sole remedy for the indemnification obligations set forth in Article VII of this Agreement, 10% of the Merger Shares, excluding the Escrowed EBITDA Shares, issuable in the Merger (A) At the Closing“Escrow Shares”), pursuant shall be deposited in escrow (the “Escrow Account”), which shall be allocated among the Recipients in the same proportion as their proportionate share of the total Company Common Stock and Company Preferred Stock immediately prior to an Escrow Agreement the Effective Time (on a converted-to-Company Common Stock basis and ignoring for such purpose any participating preference payable in respect of any Preferred Stock), all in accordance with the terms and conditions of the escrow agreement to be entered into at the Closing between Parent, the Representative, and Continental (or such other Person as may be agreed by Parent and the parties Representative), as escrow agent (“Escrow Agent”), substantially in the form of Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS A hereto (the "“Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"Agreement”). The Escrow Deposit Agreement shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by provide that on the Escrowee in accordance 30th day after the date Parent has filed with the following:
SEC its Annual Report for the year ending December 31, 2009 on Form 10-K, but in no event later than twelve months after the Closing (I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the post-Closing adjustments set forth in Section 2.2(b“Escrow Release Date”), the Escrowee Escrow Agent shall release to Buyer the Escrow Shares, less that portion thereof applied in satisfaction of the Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled or reserved with respect to indemnification claims in connection with claims made pursuant to Section 12.2, the Escrowee shall release 7.1(a) of this Agreement (“Escrow Claims”). Any Escrow Shares due to Buyer that portion of be released on the Escrow Deposit as Release Date that continue to be held with respect to any unresolved Escrow Claim shall be equal in value to such indemnification.
(III) If no claim for indemnification on the part of Buyer is outstanding upon the expiration of one (1) year following the Closing Date, any remaining Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made), shall be released to the Seller promptly after resolution of such claim(s).
(V) The value of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based Recipients in the same proportions as originally deposited into escrow, promptly upon the average closing NYSE price of such stock resolution, subject to reduction, if any, for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of indemnification obligation associated with such deliveryresolved Escrow Claim.
(B) The costs, fees and expenses of the Escrowee shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand.
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Escrow. (A) At the Closing, ten percent (10%) of the Purchase Price being paid under Section 2.3(d) above shall be paid to the Escrow Agent to be held and administered by the Escrow Agent in escrow as security for the indemnification obligations of Seller for Damages under Article IX (the “Escrow”) pursuant to an the terms of the Escrow Agreement Agreement; provided that to the extent the Purchase Price is adjusted pursuant to Section 2.4, (i) upward, then ten percent of such Increase Amount payable by Buyer under Section 2.4(f)(i) shall be entered paid into Escrow and held pursuant to the Escrow Agreement, or (ii) downward, then ten percent (10%) of such Decrease Amount will be paid by the parties substantially in Escrow Agent to Buyer. In addition, to the form extent that Buyer and/or Parent exercises its Put Right under Sections 6.2 or 6.3 of Exhibit 2.3the Purchase Agreement, and the Seller purchases certain Unused Inventories or Inventories from the Buyer and/or Parent, all or a portion of the Merger Consideration as purchase price of such Unused Inventories or Inventories shall be paid by the release of an amount equal to FIVE HUNDRED THOUSAND such purchase price of such inventories ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to Sections 12.2 and 12.4 hereof. The Escrow Deposit shall be held and disbursed by the Escrowee calculated in accordance with Sections 6.2 and 6.3) from the following:
Escrow Account to the Buyer and/or Parent (I) In the event “Inventory Escrow Amount”); provided, however, that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to Inventory Escrow Amount shall not exceed ten (10%) percent of the post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Purchase Price paid for the Inventories as determined in Section 1.1(j)(i). Any amounts then held in Escrow Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced.
(II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion and not previously paid in respect of the Escrow Deposit as shall be equal in value to such indemnification.
(III) If no claim any claims for indemnification on the part under Article IX or, released in connection with Seller’s purchase of Buyer is outstanding upon the expiration of one (1) year following the Closing DateInventory under Sections 6.2 or 6.3, or subject to any remaining Escrow Deposit (less any amounts offset for pending claims pursuant to Section 2.3(a)(i) and (ii)) shall be released to the Seller.
(IV) If any claim(s) for indemnification on the part of Buyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the outstanding claim(s) and payment in respect thereof, if any is owing, shall be made)under Article IX, shall be released to Seller not more than five (5) days after the Seller promptly after resolution twelve month anniversary of such claim(sthe Closing (the “Escrow Release Date”).
(V) The value . Any amounts earned in respect of any IHS Stock to be delivered to Buyer from the Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery.
(B) The costs, fees and expenses considered a part of the Escrowee shall be borne equally by Buyer, on Escrow and held pursuant to the one hand, and the Seller, on the other handEscrow Agreement.
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