TERMS OF THE ESCROW. 1.1 The parties hereby agree to have the law firm of ▇▇▇▇▇ & Lardner LLP act as Escrow Agent whereby the Escrow Agent shall receive the Pledged Securities in escrow and distribute the same as set forth in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement and related documents (the “Transaction Documents”). 1.2 At or prior to the Closing (or as soon thereafter as practicable) under the Merger Agreement, the Pledgors shall deliver to the Escrow Agent (i) certificates representing the Pledged Securities (ii) stock powers executed by the Pledgors for each certificate representing the Pledged Securities, and (iii) a letter addressed to the transfer agent of the Secured Party authorizing the Transfer Agent to transfer such Pledged Securities into the name of the Secured Party. (a) Following the completion of the fiscal year end audit for 2004 of the Secured Party, the Escrow Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall continue to hold any unreleased portion of the Pledged Securities in accordance with the terms of this Agreement. (b) Following the completion of the fiscal year end audit for 2005 (and 2006 if required) of the Secured Party, the Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall deliver (i) any unreleased portion of the Pledged Securities to the Secured Party, (ii) the requisite stock powers and (iii) the letter from the Pledgors authorizing the transfer agent of the Secured Party to transfer the Pledged Securities to the Secured Party. (c) Upon the Escrow Agent’s completion of its obligations under Sections 1.3(a) and (b) above, this Agreement shall terminate and the Escrow Agent shall have no further liability hereunder. 1.4 This Agreement may be altered or amended only with the written consent of all of the parties hereto. Should the Pledgors or the Secured Party attempt to change this Agreement in a manner, which, in the Escrow Agent’s discretion, shall be undesirable, the Escrow Agent may resign as Escrow Agent by notifying the Pledgors and the Secured Party in writing. In the case of the Escrow Agent’s resignation or removal pursuant to the foregoing, the only duty of the Escrow Agent, until receipt of notice from the Pledgors and the Secured Party that a successor escrow agent has been appointed, shall be to hold and preserve the Pledged Securities. Upon receipt by the Escrow Agent of said notice from the Pledgors and the Secured Party of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Pledged Securities, the Escrow Agent shall promptly thereafter transfer all of the Pledged Securities that it is still holding in escrow, to said successor escrow agent. Immediately after said transfer of the Pledged Securities, the Escrow Agent shall furnish the Pledgors and the Secured Party with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from the Pledgors or the Secured Party after notice of resignation or removal has been given. 1.5 The Escrow Agent shall be reimbursed by the Pledgors and the Secured Party for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely (any other expenses shall be borne by the secured party). The Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s own gross negligence or willful misconduct. The Escrow Agent has made no representations or warranties to the Pledgors or the Secured Party in connection with this transaction. The Escrow Agent has no liability hereunder to either party other than to hold the Pledged Securities received by the Secured Party and to deliver them under the terms hereof. Each party hereto agrees to indemnify and hold harmless the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising in any way out of this transaction including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement or the investment being made by Secured Party. 1.6 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith. 1.7 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. 1.8 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder. 1.9 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents. 1.10 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Pledged Securities held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (a) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the Pledged Securities until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (b) to deliver the Pledged Securities and any other property and documents held by the Escrow Agent hereunder to a state or federal court having competent subject matter jurisdiction and located in the State of Maryland in accordance with the applicable procedure therefor.
Appears in 1 contract
Sources: Escrow Agreement (Widepoint Corp)
TERMS OF THE ESCROW. 1.1 1.1. The parties hereby agree to have establish an escrow account with the law firm of ▇▇▇▇▇ & Lardner LLP act as Escrow Agent whereby the Escrow Agent shall receive hold the Pledged Securities in escrow funds for the purchase of the Preferred Stock and distribute the same Warrants at the Closing as set forth in this contemplated by the Purchase Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement and related documents (the “Transaction Documents”).
1.2 At or prior to 1.2. Upon the Closing (or as soon thereafter as practicable) under Escrow Agent’s receipt of the Merger aggregate Subscription Amounts into its master escrow account, together with the executed counterparts of this Agreement, the Pledgors Purchase Agreement and the Registration Rights Agreement, it shall telephonically advise the Company, or the Company’s designated attorney or agent, of the amount of funds it has received into its master escrow account.
1.3. Wire transfers to the Escrow Agent shall be made as follows: [ ] [ ] [ ] ACCOUNT NO: [ ] ABA ROUTING NO: [ ] BANK: [ ] [ ] [ ] REMARK: ▇▇▇▇/VISION
1.4. The Company, promptly following being advised by the Escrow Agent that the Escrow Agent has received the Subscription Amounts for the Closing along with facsimile copies of counterpart signature pages of the Purchase Agreement, Registration Rights Agreement and this Agreement from each Purchaser, shall deliver to the Escrow Agent (i) the certificates representing the Pledged Securities (ii) stock powers executed by shares of Preferred Stock, the Pledgors for Series A Warrants, the Series B Warrants and the Series C Warrants to be issued to each certificate representing Purchaser at the Pledged Securities, and (iii) a letter addressed to the transfer agent of the Secured Party authorizing the Transfer Agent to transfer such Pledged Securities into the name of the Secured Party.Closing together with:
(a) Following the completion Company’s executed counterpart of the fiscal year end audit for 2004 of the Secured Party, the Escrow Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall continue to hold any unreleased portion of the Pledged Securities in accordance with the terms of this Purchase Agreement.;
(b) Following the completion Company’s executed counterpart of the fiscal year end audit for 2005 (and 2006 if required) of the Secured Party, the Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall deliver (i) any unreleased portion of the Pledged Securities to the Secured Party, (ii) the requisite stock powers and (iii) the letter from the Pledgors authorizing the transfer agent of the Secured Party to transfer the Pledged Securities to the Secured Party.Registration Rights Agreement;
(c) Upon the Escrow Agent’s completion executed opinion of its obligations under Sections 1.3(a) and (b) above, this Agreement shall terminate and the Escrow Agent shall have no further liability hereunder.
1.4 This Agreement may be altered or amended only with the written consent of all of the parties hereto. Should the Pledgors or the Secured Party attempt to change this Agreement in a manner, whichCompany Counsel, in the form of Exhibit D to the Purchase Agreement;
(d) the Lock-Up Agreements (as required pursuant to Section 2.2(a)(iv) of the Purchase Agreement);
(e) the Company’s original executed counterpart of this Escrow AgentAgreement;
(f) the evidence of the filing of the Certificate of Designation with the Secretary of State of Delaware; and
(g) the officer’s discretion, shall be undesirable, certificates required pursuant to Section 2.2(a)(x) of the Escrow Agent may resign as Escrow Agent by notifying the Pledgors and the Secured Party in writingPurchase Agreement.
1.5. In the case of event that the Escrow Agent’s resignation or removal pursuant to the foregoing, the only duty of the Escrow Agent, until receipt of notice from the Pledgors and the Secured Party that a successor escrow agent has been appointed, shall be to hold and preserve the Pledged Securities. Upon receipt by the Escrow Agent of said notice from the Pledgors and the Secured Party of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Pledged Securities, the Escrow Agent shall promptly thereafter transfer all of the Pledged Securities that it is still holding in escrow, to said successor escrow agent. Immediately after said transfer of the Pledged Securities, the Escrow Agent shall furnish the Pledgors and the Secured Party with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from the Pledgors or the Secured Party after notice of resignation or removal has been given.
1.5 The Escrow Agent shall be reimbursed by the Pledgors and the Secured Party for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely (any other expenses shall be borne by the secured party). The Escrow Agent shall foregoing items are not be liable for any action taken or omitted by Escrow Agent in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s own gross negligence or willful misconduct. The Escrow Agent has made no representations or warranties to the Pledgors or the Secured Party in connection with this transaction. The Escrow Agent has no liability hereunder to either party other than to hold the Pledged Securities received by the Secured Party and to deliver them under the terms hereof. Each party hereto agrees to indemnify and hold harmless the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising in any way out of this transaction including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement or the investment being made by Secured Party.
1.6 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith.
1.7 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
1.8 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder.
1.9 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents.
1.10 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Pledged Securities held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (a) to retain in the Escrow Agent’s possession without liability to anyone all or any part within five (5) Trading Days of said documents or the Pledged Securities until such disputes Escrow Agent receiving the Subscription Amounts, then each Purchaser shall have been settled either the right to demand the return of their Subscription Amounts.
1.6. Once the Escrow Agent receives a Release Notice, in the form attached hereto as Exhibit X, (the “Release Notice”) executed by mutual written agreement the Company and each Purchaser, it shall wire (a) the aggregate Subscription Amounts for the shares of Preferred Stock and the Warrants in accordance with the Closing Statement to the Purchase Agreement less (b) $500,000 to Sovereign Bancorp Ltd. for the IR Escrow Account as required pursuant to Section 4.18(a) of the parties concerned or by a final orderPurchase Agreement.
1.7. Wire transfers to the Company shall be made pursuant to written instructions from the Company provided to the Escrow Agent on the Closing Date.
1.8. Once the funds (as set forth above) have been sent per the Company’s instructions, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever then arrange to institute or defend any such proceedings or (b) to deliver have the Pledged Securities and any other property and documents held by Purchase Agreement, the Warrants, the shares of Preferred Stock, the Registration Rights Agreement, the Escrow Agent hereunder Agreement, the Lock-Up Agreements and the opinion of counsel delivered to a state or federal court having competent subject matter jurisdiction and located in the State of Maryland in accordance with the applicable procedure thereforappropriate parties.
Appears in 1 contract
Sources: Escrow Agreement (Juhl Wind, Inc)
TERMS OF THE ESCROW. 1.1 The parties hereby agree to have the law firm ▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇ & Lardner LLP ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US of act as Escrow Agent whereby the Escrow Agent shall receive the Pledged Securities Funds in escrow and distribute the same as set forth in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Stock Purchase Agreement, dated an even date herewith between the Company and YLS (the “ Stock Purchase Agreement”), and the documents related thereto, with this Agreement being an exhibit to such Stock Purchase Agreement. The various documents and related documents instruments to be delivered to the Escrow Agent and thereby to the parties in order to close the transaction are set forth in Section 3.2 and 3.3 of the Purchase Agreement (collectively, the “Transaction Documents”). The Escrow Agent hereby acknowledges that it is familiar with the terms and provisions of the Purchase Agreement.
1.2 At or prior to Upon the Closing (or as soon thereafter as practicable) under the Merger execution of this Agreement, the Pledgors Company and YLS shall deliver the executed Transaction Documents to the Escrow Agent (i) certificates representing as of the Pledged Securities (ii) stock powers executed by date of this Agreement and YLS shall submit a wire or check in the Pledgors for each certificate representing amount of the Pledged Securities, and (iii) a letter addressed Funds to the transfer agent Escrow Agent. The Escrow Agent shall thereafter hold the Funds and the Transaction Documents until the first to occur of the Secured Party authorizing the Transfer Agent to transfer such Pledged Securities into the name of the Secured Party.
(a) Following such time that the completion Escrow Agent has received written instructions from YLS to release the funds from Escrow to the Company or (b) Outside Date. Upon receipt of written instructions from YLS to release the fiscal year end audit for 2004 of funds from Escrow to the Secured PartyCompany, the Escrow Agent shall release such portion deliver signed counterparts of the Pledged Securities as Transaction Documents to YLS and the Company and disburse the Funds to the Company. If confirmation of the Transfer Instruction is required not delivered by August 31st, 2006, upon delivery thereon or thereafter to the Escrow Agent of written notice from YLS, the Escrow Agent shall immediately return the Funds and the Transaction Documents signed by YLS to YLS and return to the Company the Transaction Documents signed by the terms of Company.
1.3 Upon the completion by the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall continue to hold any unreleased portion of the Pledged Securities in accordance with the terms of this Agreement.
(b) Following the completion of the fiscal year end audit for 2005 (and 2006 if required) of the Secured Party, the Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall deliver (i) any unreleased portion of the Pledged Securities to the Secured Party, (ii) the requisite stock powers and (iii) the letter from the Pledgors authorizing the transfer agent of the Secured Party to transfer the Pledged Securities to the Secured Party.
(c) Upon the Escrow Agent’s completion of its obligations under Sections 1.3(a) and (b) aboveSection 1.2, this Agreement shall terminate and the Escrow Agent shall have no further liability hereunder.
1.4 This Agreement may be altered or amended only with the written consent of all of the parties hereto. Should In the Pledgors event the Company or the Secured Party attempt YLS attempts to change this Agreement in a manner, which, in the Escrow Agent’s discretion, shall be undesirable, the Escrow Agent may resign as Escrow Agent by notifying the Pledgors Company and the Secured Party YLS in writing. In the case of the Escrow Agent’s resignation or removal pursuant to the foregoingresignation, the only duty of the Escrow Agent, until receipt of a joint written notice from the Pledgors Company and YLS (the Secured Party “Transfer Instructions”) that a successor escrow agent has been appointed, shall be to hold and preserve the Pledged SecuritiesFunds and the Transaction Documents that are in its possession. Upon receipt by the Escrow Agent of said notice from the Pledgors Company and the Secured Party YLS of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Pledged SecuritiesFunds to such successor escrow account to be thereafter held by such successor escrow agent, the Escrow Agent shall promptly thereafter transfer all of the Pledged Securities that it is still holding in escrow, Funds and deliver the Transaction Documents to said successor escrow agent. Immediately after said transfer of the Pledged SecuritiesFunds and delivery of the Transaction Documents to said successor escrow agent, the Escrow Agent shall furnish the Pledgors Company and the Secured Party YLS with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from the Pledgors or the Secured Party Company and YLS after notice of resignation or removal has been given, except only for the Transfer Instructions.
1.5 The Escrow Agent shall be reimbursed by the Pledgors and the Secured Party Company for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely (any other expenses shall be borne by the secured party)rely. The Escrow Agent shall not be liable for any action taken or omitted by the Escrow Agent in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s own gross negligence or willful misconduct. The Escrow Agent has made no representations or warranties to the Pledgors Company or the Secured Party YLS in connection with this transaction. The Escrow Agent has no liability hereunder to either party other than to hold the Pledged Securities Funds received by the Secured Party from YLS and to deliver them the Funds under the terms hereof. Each party hereto The Company and YLS each agrees to indemnify and hold harmless the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising in any way out of this transaction transaction, including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement or Agreement. The parties each and all acknowledge and recognize that the investment being made by Secured PartyEscrow Agent has also served and shall continue to serve as the legal counsel to the Company and the parties each and all waive any claim of any conflict of interest as a result thereof.
1.6 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s 's attorneys-at-law shall be conclusive evidence of such good faith.
1.7 The Escrow Agent is hereby expressly authorized to disregard any and all warnings or orders given by any of the parties hereto or by any other person or corporation, excepting only the Transfer Instructions, the termination notice of YLS provided for in Section 1.2 above and/or orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, including but not limited to the Transfer Instructions, then the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree or orders being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
1.8 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder.
1.9 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents.
1.10 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or Funds and/or the Pledged Securities Transaction Documents held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s 's sole discretion (a) to retain the Funds and the Transaction Documents in the Escrow Agent’s possession 's possession, without liability to anyone all or any part of said documents or the Pledged Securities anyone, until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (b) to deliver the Pledged Securities Funds and any other property and documents the Transaction Documents held by the Escrow Agent hereunder to a state or federal court having competent subject matter jurisdiction and located in the State District of Maryland Columbia in accordance with the applicable procedure therefor.
Appears in 1 contract
TERMS OF THE ESCROW. 1.1 The parties hereby agree to have the law firm of ▇▇▇▇▇ & Lardner LLP Cardinal Trust and Investments act as Escrow Agent whereby the Escrow Agent shall receive the Pledged Securities funds in escrow and distribute the same as set forth in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Preferred Stock Purchase Agreement, dated on even date herewith between the Company and Liberty (the “Preferred Stock Purchase Agreement”), and the documents related thereto, with this Agreement being an exhibit to such Preferred Stock Purchase Agreement. The various documents and related documents instruments to be delivered to the Escrow Agent and thereby to the parties in order to close the transaction are set forth in Article III of the Purchase Agreement (collectively, the “Transaction Documents”). The Escrow Agent hereby acknowledges that it is familiar with the terms and provisions of the Purchase Agreement.
1.2 At or prior to Upon the Closing (or as soon thereafter as practicable) under the Merger execution of this Agreement, the Pledgors Company and Liberty shall deliver the executed Transaction Documents to the Escrow Agent (i) certificates representing the Pledged Securities (ii) stock powers executed by the Pledgors for each certificate representing the Pledged Securities, and (iii) a letter addressed agree to the transfer agent of following:
1.2.1 As relating to the Secured Party authorizing the Transfer Agent to transfer such Pledged Securities into the name of the Secured Party1st Round Preferred Stock, see Exhibit 1.2.1.
(a) Following 1.2.2 As relating to the 2nd Round Preferred Stock, see Exhibit 1.2.2.
1.2.3 As relating to the Acquisition Penalty Stock, see Exhibit 1.2.3.
1.2.4 As relating to the 2007 EBITDA Penalty Stock, see Exhibit 1.2.4.
1.2.5 As relating to the Warrants, see Exhibit 1.2.5.
1.3 Upon the completion of the fiscal year end audit for 2004 of the Secured Party, by the Escrow Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall continue to hold any unreleased portion of the Pledged Securities in accordance with the terms of this Agreement.
(b) Following the completion of the fiscal year end audit for 2005 (and 2006 if required) of the Secured Party, the Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall deliver (i) any unreleased portion of the Pledged Securities to the Secured Party, (ii) the requisite stock powers and (iii) the letter from the Pledgors authorizing the transfer agent of the Secured Party to transfer the Pledged Securities to the Secured Party.
(c) Upon the Escrow Agent’s completion of its obligations under Sections 1.3(a) and (b) aboveSection 1.2, this Agreement shall terminate and the Escrow Agent shall have no further liability hereunder.
1.4 This Agreement may be altered or amended only with the written consent of all of the parties hereto. Should In the Pledgors event the Company or the Secured Party attempt Liberty attempts to change this Agreement in a manner, which, in the Escrow Agent’s discretion, shall be undesirable, the Escrow Agent may resign as Escrow Agent by notifying the Pledgors Company and the Secured Party Liberty in writing. In the case of the Escrow Agent’s resignation or removal pursuant to the foregoingresignation, the only duty of the Escrow Agent, until receipt of a joint written notice from the Pledgors Company and Liberty (the Secured Party “Transfer Instructions”) that a successor escrow agent has been appointed, shall be to hold and preserve the Pledged Securitiesfunds and the Transaction Documents that are in its possession. Upon receipt by the Escrow Agent of said notice from the Pledgors Company and the Secured Party Liberty of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Pledged Securitiesfunds to such successor escrow account to be thereafter held by such successor escrow agent, the Escrow Agent shall promptly thereafter transfer all of the Pledged Securities that it is still holding in escrow, funds and deliver the Transaction Documents to said successor escrow agent. Immediately after said transfer of the Pledged Securitiesfunds and delivery of the Transaction Documents to said successor escrow agent, the Escrow Agent shall furnish the Pledgors Company and the Secured Party Liberty with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from the Pledgors or the Secured Party Company and Liberty after notice of resignation or removal has been given, except only for the Transfer Instructions.
1.5 The Escrow Agent shall be reimbursed by the Pledgors and the Secured Party Company for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely (any other expenses shall be borne by the secured party)rely. The Escrow Agent shall not be liable for any action taken or omitted by the Escrow Agent in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s own gross negligence or willful misconduct. The Escrow Agent has made no representations or warranties to the Pledgors Company or the Secured Party Liberty in connection with this transaction. The Escrow Agent has no liability hereunder to either party other than to hold the Pledged Securities funds received by the Secured Party from Liberty and to deliver them the funds under the terms hereof. Each party hereto The Company and Liberty each agrees to indemnify and hold harmless the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising in any way out of this transaction transaction, including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement or the investment being made by Secured PartyAgreement.
1.6 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s 's attorneys-at-law shall be conclusive evidence of such good faith.
1.7 The Escrow Agent is hereby expressly authorized to disregard any and all warnings or orders given by any of the parties hereto or by any other person or corporation, excepting only Transfer Instructions, notices of termination provided for in Section 1.2 above and/or orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, including but not limited to the Transfer Instructions, then the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree or orders being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
1.8 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder.
1.9 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents.
1.10 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or funds and/or the Pledged Securities Transaction Documents held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s 's sole discretion (a) to retain the funds and the Transaction Documents in the Escrow Agent’s possession 's possession, without liability to anyone all or any part of said documents or the Pledged Securities anyone, until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (b) to deliver the Pledged Securities funds and any other property and documents the Transaction Documents held by the Escrow Agent hereunder to a state or federal court having competent subject matter jurisdiction and located in the State of Maryland New York in accordance with the applicable procedure therefortherefore.
1.11 In addition to paragraph 1.5, all costs, expenses and fees (the “Escrow Agent Fees”) associated with the escrow services provided herein as indicated on Schedule A shall be paid by the Company with such Fees being deducted from the amounts due and payable to the Company herein from the escrow funds.
Appears in 1 contract
TERMS OF THE ESCROW. 1.1 The parties hereby agree to have the law firm of ▇▇▇▇▇▇ & Lardner LLP ▇. Garden, P.C. act as Escrow Agent whereby the Escrow Agent shall receive the Pledged Securities Shares in escrow and distribute the same as set forth in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement and related documents (the “Transaction Documents”).
1.2 At or prior to the Closing (or as soon thereafter as practicable) under execution of the Merger Stock Pledge Agreement, the Pledgors Pledgor shall deliver to the Escrow Agent certificates representing the (i) certificates representing the Pledged Securities Shares, (ii) stock powers executed by the Pledgors Pledgor for each certificate representing the Pledged SecuritiesShares, and (iii) a letter addressed to the transfer agent for the common stock of the Secured Party Knightsbridge authorizing the Transfer Agent to transfer such Pledged Securities Shares into the name of the Secured Party.
(a) Following Upon an Event of Default (as defined in the completion of the fiscal year end audit for 2004 of Promissory Note), Escrow Agent is hereby authorized to release to the Secured Party, the Escrow Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall continue to hold any unreleased portion of the Pledged Securities in accordance with the terms of this Agreement.
(b) Following the completion of the fiscal year end audit for 2005 (and 2006 if required) of the Secured Party, the Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall deliver Party (i) any unreleased portion of the Pledged Securities to the Secured PartyShares, (ii) the requisite stock powers powers, and (iii) the a letter from the Pledgors Pledgor authorizing the transfer agent of the Secured Party Company to transfer the Pledged Securities Shares to the Secured Party.
(b) Upon payment in full of the Promissory Note, the Escrow Agent shall return the Shares to the Pledgor, less any shares released to the Secured Party pursuant Section 1.3(a).
(c) Upon the Escrow Agent’s 's completion of its obligations under Sections 1.3(a) and or (b) above), this Agreement shall terminate and the Escrow Agent shall have no further liability obligations hereunder.
1.4 This Agreement may be altered or amended only with the written consent of all of the parties hereto. Should the Pledgors Pledgor or the Secured Party attempt to change this Agreement in a manner, manner which, in the Escrow Agent’s 's discretion, shall be undesirable, the Escrow Agent may resign as Escrow Agent by notifying the Pledgors Pledgor and the Secured Party in writing. In the case of the Escrow Agent’s 's resignation or removal pursuant to the foregoing, the its only duty of the Escrow Agentduty, until receipt of notice from the Pledgors Pledgor and the Secured Party that a successor escrow agent has been appointed, shall be to hold and preserve the Pledged SecuritiesShares that are in its possession. Upon receipt by the Escrow Agent of said notice from the Pledgors Pledgor and the Secured Party of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Pledged SecuritiesShares, the Escrow Agent shall promptly thereafter transfer all of the Pledged Securities Shares that it is still holding in escrow, to said successor escrow agent. Immediately after said transfer of the Pledged SecuritiesShares, the Escrow Agent shall furnish the Pledgors Pledgor and the Secured Party with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from the Pledgors Pledgor or the Secured Party after notice of resignation or removal has been given.
1.5 The Escrow Agent shall be reimbursed by the Pledgors Pledgor and the Secured Party for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely (any other expenses shall be borne by the secured party)rely. The Escrow Agent shall not be liable for any action taken or omitted by Escrow Agent it in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s 's own gross negligence or willful misconduct. The Escrow Agent has made no representations or warranties to the Pledgors Pledgor or the Secured Party in connection with this transaction. The Escrow Agent has no liability hereunder to either party other than to hold the Pledged Securities Shares received by the Secured Party Pledgor and to deliver them under the terms hereof. Each party hereto agrees to indemnify and hold harmless the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising in any way out of this transaction including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement Agreement. The Pledgor acknowledges that the Escrow Agent is not rendering advice to it with respect to this transaction or otherwise. The Escrow Agent has acted as legal counsel for the investment being made by Secured Party and may continue to act as legal counsel for the Secured Party, from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Pledgor consents to the Escrow Agent acting in such capacity as legal counsel for the Secured Party and waives any claim that such representation represents a conflict of interest on the part of the Escrow Agent. The Pledgor understands that the Secured Party and Escrow Agent are relying explicitly on the foregoing provisions contained in this Section 1.5 in entering into this Agreement.
1.6 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s 's attorneys-at-law shall be conclusive evidence of such good faith.
1.7 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process processes of courts of law law, and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
1.8 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the this Agreement or any documents or papers deposited or called for hereunder.
1.9 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents.
1.10 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Pledged Securities Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s 's sole discretion (a) to retain in the Escrow Agent’s 's possession without liability to anyone all or any part of said documents or the Pledged Securities Shares until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (b) to deliver the Pledged Securities Shares and any other property and documents held by the Escrow Agent hereunder to a state or federal court having competent subject matter jurisdiction and located in the State of Maryland Texas in accordance with the applicable procedure therefor.
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TERMS OF THE ESCROW. 1.1 The parties hereby agree (a) From time to time during the period from March 29, 1999 through the later of April 29, 1999 or the date of the actual Closing pursuant to the Asset Purchase Agreement (the "Interim Period"), but in no event more than once in any calendar week during the Interim Period, Seller shall have the law firm right to notify Buyer and the Escrow Agent, in writing, that Seller no longer requires particular items of ▇▇▇▇▇ & Lardner LLP act Machinery and Equipment, Molds, Raw Materials and/or Finished Goods. In addition to identifying the particular Asset which it no longer requires, Seller shall set forth in the notice the value of such Asset as set forth in the Schedules to the Asset Purchase Agreement. Along with each such notice, Seller shall also deliver or cause to be delivered to the Escrow Agent whereby an executed release of any and all security interests with respect to each such Asset (a "UCC Termination Statement"), in form suitable for filing. Unless Buyer submits a written objection to Seller and the Escrow Agent within seven days of Buyer's receipt of Seller's notice (an "Objection Notice"), on the eighth day after the date of such receipt (i) the Escrow Agent shall receive remit the Pledged Securities in escrow and distribute the same value of such Assets, as set forth in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed notice, to them Seller payable in the Merger Agreement manner set forth in Section 4(d) below, and related documents (ii) as soon as practicable thereafter, the “Transaction Documents”)Escrow Agent shall file the corresponding UCC Termination Statement(s) with the office of the Secretary of State of Alabama and the appropriate filing officer in Perry County, Alabama. If Buyer submits a timely Objection Notice, the matter will be resolved in accordance with subparagraph (c) below.
1.2 (b) At or prior the Closing pursuant to the Closing (or as soon thereafter as practicable) under the Merger Asset Purchase Agreement, the Pledgors (i) Buyer and Seller shall deliver to the Escrow Agent (i) certificates representing the Pledged Securities (ii) stock powers a schedule, executed by Buyer and Seller, setting forth the Pledgors for each certificate representing the Pledged Securitiesfinal Purchase Price, and (iii) a letter addressed to the transfer agent of the Secured Party authorizing the Transfer Agent to transfer such Pledged Securities into the name of the Secured Party.
(a) Following the completion of the fiscal year end audit for 2004 of the Secured Party, the Escrow Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall continue to hold any unreleased portion of the Pledged Securities determined in accordance with the terms of this the Asset Purchase Agreement.
(b) Following the completion of the fiscal year end audit for 2005 (, and 2006 if required) of the Secured Party, the Agent shall release such portion of the Pledged Securities as is required by the terms of the Escrow Release Formula set forth in Section 6.15 of the Merger Agreement and shall deliver (i) any unreleased portion of the Pledged Securities to the Secured Party, (ii) the requisite stock powers and (iii) the letter from the Pledgors authorizing the transfer agent of the Secured Party Seller shall deliver to transfer the Pledged Securities to the Secured Party.
(c) Upon the Escrow Agent’s completion of its obligations under Sections 1.3(a) and (b) above, this Agreement shall terminate and the Escrow Agent shall have no further liability hereunder.
1.4 This Agreement may be altered or amended only executed UCC Termination Statements with the written consent of respect to all of the parties hereto. Should the Pledgors or the Secured Party attempt Assets (other than those with respect to change this Agreement in a manner, which, in the Escrow Agent’s discretion, shall be undesirable, the Escrow Agent may resign as Escrow Agent by notifying the Pledgors and the Secured Party in writing. In the case of the Escrow Agent’s resignation or removal which UCC Termination Statements were delivered pursuant to subparagraph (a) above during the foregoing, the only duty of the Escrow Agent, until receipt of notice from the Pledgors and the Secured Party that a successor escrow agent has been appointed, shall be to hold and preserve the Pledged Securities. Upon receipt by the Escrow Agent of said notice from the Pledgors and the Secured Party of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Pledged Securities, the Escrow Agent shall promptly thereafter transfer all of the Pledged Securities that it is still holding in escrow, to said successor escrow agent. Immediately after said transfer of the Pledged Securities, the Escrow Agent shall furnish the Pledgors and the Secured Party with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from the Pledgors or the Secured Party after notice of resignation or removal has been given.
1.5 The Escrow Agent shall be reimbursed by the Pledgors and the Secured Party for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely (any other expenses shall be borne by the secured partyInterim Period). The Escrow Agent shall not be liable for any action taken or omitted pay to Seller from the Escrow Account the amount by Escrow Agent in good faith and in no event shall which the Purchase Price exceeds the amount the Escrow Agent be liable or responsible except for had delivered to Seller during the Interim Period pursuant to subparagraph (a) above (hereinafter, "the balance of the Purchase Price"). If the amount in the Escrow Agent’s own gross negligence or willful misconduct. The Account is less than the balance of the Purchase Price, the Escrow Agent has made no representations or warranties shall deliver all of the Escrow Funds to Seller, and Buyer shall pay the balance of the Purchase Price to Seller at the Closing. If the amount in the Escrow Account exceeds the balance of the Purchase Price, the Escrow Agent shall deliver an amount equal to the Pledgors or balance of the Secured Party Purchase Price to Seller, and shall deliver the amount then remaining in connection with this transaction. The the Escrow Account to Buyer.
(c) In the event that the Escrow Agent has no liability hereunder to either party other than receives a timely Objection Notice from Buyer, the Escrow Agent shall continue to hold the Pledged Securities received by Escrow Funds until it receives either (i) joint instructions from Buyer and Seller, or (ii) a final and binding order of an arbitrator or court of competent jurisdiction resolving the Secured Party matter in accordance with paragraph 5, as applicable (each, a "Resolution Notice"). The Resolution Notice shall describe the manner in which the matter has been resolved and shall set forth instructions as to deliver them under the terms hereof. Each party hereto agrees to indemnify and hold harmless disposition of the portion of the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising Funds involved in any way out of this transaction including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement or the investment being made by Secured Party.
1.6 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or partiesdispute. The Escrow Agent shall not be personally liable for any act then distribute the Escrow Funds (or portion thereof, if applicable) in accordance with the Resolution Notice.
(d) Any and all amounts which the Escrow Agent may do is to remit, pay, distribute or omit otherwise deliver to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted Seller pursuant to this Agreement shall be sent by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith.
1.7 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
1.8 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder.
1.9 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents.
1.10 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the Pledged Securities held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (a) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the Pledged Securities until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (b) to deliver the Pledged Securities and any other property and documents held by the Escrow Agent hereunder to a state or federal court having competent subject matter jurisdiction and located in the State of Maryland in accordance with the applicable procedure thereforfollowing routing instructions: Account Number: 2▇▇-▇▇▇-▇; Account Name: FSFP Collateral Account for Gibraltar Packaging Group, Inc.; ABA Number: 0▇▇▇▇▇▇▇▇; Bank Name and Location: H▇▇▇▇▇ Bank, Chicago, Illinois.
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