Common use of Claims Against Escrow Shares Clause in Contracts

Claims Against Escrow Shares. At any time or times prior to the Expiration Date (as defined in Section 7 of this Escrow Agreement), Parent may make claims against the Escrow Shares for amounts potentially eligible for indemnification under Section 10.2 of the Merger Agreement by delivering to the Escrow Agent an Officer's Certificate prepared in accordance with Section 10.4 of the Merger Agreement, with a copy delivered at the same time to the Shareholders' Agent. Upon the earliest of: (i) receipt of written authorization from the Shareholders' Agent or from the Shareholders' Agent jointly with Parent to make such delivery, (ii) receipt of written notice of a final decision in arbitration of the claim, (iii) in the event the claim set forth in the Officer's Certificate is uncontested by the Shareholders' Agent, in accordance with Section 10.5 of the Merger Agreement, and if the aggregate amount of undisputed claims exceeds $3,000,000, each such undisputed claim shall be deemed to have been acknowledged to be payable from the Escrow Shares in the full amount of the Damages (as defined in the Merger Agreement) set forth in the Officer's Certificate, and the Escrow Agent shall pay such amount to Parent as soon as practicable after expiration of the (twenty) 20 business day dispute period provided for in Section 10.5 of the Merger Agreement. The Escrow Agent shall effect such payment of Escrow Shares to Parent by surrendering the certificate representing the Escrow Shares to Parent's transfer agent for cancellation with instructions to issue a new certificate to the Escrow Agent for the number of Escrow Shares remaining after giving effect to such payment and a certificate to Parent for the number of Escrow Shares constituting such payment. If the amount of the claim exceeds the aggregate value of the Escrow Shares, none of the Escrow Agent, the Shareholders' Agent, the Shareholders or any Company Indemnified Person shall have liability or responsibility for any deficiency. For purposes of determining how many Escrow Shares shall be delivered in satisfaction of any claim, each Escrow Share shall have a value equal to the average of the closing prices for the common stock of Parent as reported for the primary trading session (currently ending at 4:00 p.m. on the Nasdaq National Market) during the period comprised of ten (10) consecutive trading days ending on the trading day two business days preceding delivery of the Escrow Shares to Parent in satisfaction of such claim (the "Escrow Share Value"). The number of Escrow Shares to be paid to Parent by the Escrow Agent shall be calculated by dividing the amount of the Damages to which such claim relates by the Escrow Share Value. Any payment to Parent shall reduce the number of Escrow Shares in which the Shareholder or Shareholders obligated to make such payment have an interest. All claims paid out of the Escrow Shares shall be rounded to the nearest whole share. If the shares of Parent common stock originally constituting the Escrow Shares are converted or reclassified into or exchanged for any other securities or property, the foregoing claim and payment provisions shall apply to such other security or property. To the extent that the Escrow Agent is required to deliver Escrow Shares to Parent under this Agreement, it shall deliver such Escrow Shares based on the respective ownership of the Escrow Shares among the shareholder parties.

Claims Against Escrow Shares. (a) At any time or times prior to the Expiration Date (as defined in Section 7 of this Escrow Agreementbelow), Parent Helix may make claims against the Escrow Shares for amounts potentially eligible due for indemnification under Section 10.2 10 of the Merger Agreement by delivering Agreement. Helix shall notify the Stockholder Representative and the Escrow Agent in writing of each such claim, including a brief description of the amount and nature of such claim. Each such notice delivered to the Escrow Agent an Officerby Helix shall contain a representation of Helix to the effect that Helix has delivered a copy of such notice to the Stockholder Representative prior to or simultaneously with its delivery to the Escrow Agent. In the event that the amount subject to the claim is unliquidated, Helix shall make a good faith estimate as to the amount of the claim for purposes of determining the number of Escrow Shares to be withheld by the Escrow Agent if such claim is not resolved or otherwise adjudicated by the Expiration Date. If the Stockholder Representative disputes such claim, the Stockholder Representative shall give written notice thereof to Helix and to the Escrow Agent within thirty days after the date Helix's Certificate prepared notice of claim was delivered to the Stockholder Representative, in which case the Escrow Agent shall continue to hold the Escrow Shares in accordance with Section 10.4 the terms of the Merger this Agreement; otherwise, with a copy delivered at the same time to the Shareholders' Agent. Upon the earliest of: (i) receipt of written authorization from the Shareholders' Agent or from the Shareholders' Agent jointly with Parent to make such delivery, (ii) receipt of written notice of a final decision in arbitration of the claim, (iii) in the event the claim set forth in the Officer's Certificate is uncontested by the Shareholders' Agent, in accordance with Section 10.5 of the Merger Agreement, and if the aggregate amount of undisputed claims exceeds $3,000,000, each such undisputed claim shall be deemed to have been acknowledged to be payable from the Escrow Shares in the full amount of the Damages (as defined in the Merger Agreement) set forth in the Officer's Certificate, claim and the Escrow Agent shall pay such amount claim to Parent Helix as soon as practicable after expiration of the (twenty) 20 business that thirty-day dispute period provided for in Section 10.5 of the Merger Agreementperiod. The Escrow Agent shall effect such payment of Escrow Shares to Parent Helix by surrendering the certificate representing the Escrow Shares to ParentHelix's transfer agent for cancellation with instructions to issue a new certificate to the Escrow Agent for the number of Escrow Shares remaining after giving effect to such payment and a certificate to Parent for the number of Escrow Shares constituting such payment. If the amount of the claim exceeds the aggregate value of the Escrow Shares, none of the Escrow Agent, the Shareholders' Agent, the Shareholders or any Company Indemnified Person Agent shall have no liability or responsibility for any deficiency. For purposes of determining how many Escrow Shares shall be delivered in satisfaction of any claim, each Escrow Share shall have a The value equal to the average of the closing prices for the common stock of Parent as reported for the primary trading session (currently ending at 4:00 p.m. on the Nasdaq National Market) during the period comprised of ten (10) consecutive trading days ending on the trading day two business days preceding delivery per share of the Escrow Shares to Parent in satisfaction for purposes of such claim this Agreement shall be $20.00 (the "Escrow Agreed Share Value"). The number of Escrow Shares to be paid to Parent by the Escrow Agent shall be calculated by dividing the amount of the Damages to which such claim relates by the Escrow Share Value. Any payment to Parent shall reduce the number of Escrow Shares in which the Shareholder or Shareholders obligated to make such payment have an interest. All claims paid out of the Escrow Shares shall be rounded to the nearest whole share. If Under no circumstances shall the shares of Parent common stock originally constituting Stockholders or the Stockholder Representative have any right to substitute other property for the Escrow Shares are converted or reclassified into or exchanged for any other securities or property, to change the foregoing claim and payment provisions shall apply to such other security or property. To the extent that the Escrow Agent is required to deliver Escrow Shares to Parent under this Agreement, it shall deliver such Escrow Shares based on the respective ownership of the Escrow Shares among the shareholder partiesAgreed Share Value.

Claims Against Escrow Shares. (a) At any time or times prior to the Expiration Date (as defined in Section 7 of this Escrow Agreementbelow), Parent the Buyer may make claims (each a "Claim") against the Escrow Shares (i) for amounts potentially eligible due for indemnification under Section 10.2 of the Merger Agreement as agreed to by delivering each Non-Employee Stockholder in an indemnification agreement delivered to the Buyer on the date hereof or (ii) as specified in Section 1 hereof. The Buyer shall notify the Stockholder Representative and the Escrow Agent in writing of each such Claim, including a brief description of the amount and nature of such Claim and the value per share of the Escrow Shares as set forth in this Section. Each such notice delivered to the Escrow Agent an Officerby the Buyer shall contain a representation of the Buyer to the effect that the Buyer has delivered a copy of such notice to the Stockholder Representative prior to or simultaneously with its delivery to the Escrow Agent. In the event that the amount subject to the Claim is unliquidated, the Buyer shall make a good faith estimate as to the amount of the Claim for purposes of determining the number of Escrow Shares, if any, to be withheld by the Escrow Agent if such Claim is not resolved or otherwise adjudicated by the Expiration Date. If the Stockholder Representative disputes such Claim, the Stockholder Representative shall give written notice thereof to the Buyer and to the Escrow Agent within thirty (30) days after the date the Buyer's Certificate prepared notice of Claim was delivered to the Stockholder Representative, in which case the Escrow Agent shall continue to hold the Escrow Shares in accordance with Section 10.4 the terms of the Merger this Agreement; otherwise, with a copy delivered at the same time to the Shareholders' Agent. Upon the earliest of: (i) receipt of written authorization from the Shareholders' Agent or from the Shareholders' Agent jointly with Parent to make such delivery, (ii) receipt of written notice of a final decision in arbitration of the claim, (iii) in the event the claim set forth in the Officer's Certificate is uncontested by the Shareholders' Agent, in accordance with Section 10.5 of the Merger Agreement, and if the aggregate amount of undisputed claims exceeds $3,000,000, each such undisputed claim Claim shall be deemed to have been acknowledged to be payable from in shares out of the Escrow Shares in the full amount of the Damages (thereof as defined in the Merger Agreement) set forth in the Officer's CertificateClaim, and the Escrow Agent shall use its best efforts to pay such amount Claim from the Escrow Shares to Parent as soon as practicable the Buyer within three (3) business days after expiration of the (twenty) 20 business that thirty-day dispute period provided for in Section 10.5 of the Merger Agreementperiod. The Escrow Agent shall effect such payment of Escrow Shares to Parent the Buyer by surrendering the certificate representing the such Escrow Shares to Parentthe Buyer's transfer agent (Bank of Boston, c/o Boston EquiServe, L.P., Mail Stop 45-02-09, P. O. Box 644, Boston, MA 02102) for cancellation with instructions upon receipt by the Escrow Agent of a copy of a letter from the Buyer to the Buyer's transfer agent, instructing such transfer agent to issue a new certificate to the Escrow Agent for the number of remaining Escrow Shares remaining after giving effect to such payment and a certificate to Parent for the number of Escrow Shares constituting such payment. If the amount of the claim Claim exceeds the aggregate value of the Escrow Shares, none of the Escrow Agent, the Shareholders' Agent, the Shareholders or any Company Indemnified Person Agent shall have no liability or responsibility for any deficiency. For The value per share of the Escrow Shares for purposes of determining how many this Agreement shall be the closing price for the Escrow Shares shall be delivered in satisfaction of any claim, each Escrow Share shall have a value equal to the average of the closing prices for the common stock of Parent as reported for the primary trading session (currently ending at 4:00 p.m. on the Nasdaq National Market) during the period comprised of ten (10) consecutive trading days ending preceding the date of the notice by the Buyer of any Claim and such value shall be set forth in any such notice. The Escrow Agent may rely conclusively on the trading day two business days preceding delivery per share value set forth therein for the purpose of the Escrow Shares to Parent in satisfaction of such claim (the "Escrow Share Value"). The number of Escrow Shares to be paid to Parent by the Escrow Agent shall be calculated by dividing determining the amount of the Damages shares required to which such claim relates by the Escrow Share Value. Any payment to Parent shall reduce the number of Escrow Shares in which the Shareholder or Shareholders obligated to make such payment have an interestpay a Claim. All claims Claims paid out of the Escrow Shares shall be rounded to the nearest whole share. If Under no circumstances shall the shares of Parent common stock originally constituting Non-Employee Stockholders or the Stockholder Representative have any right to substitute other property for the Escrow Shares are converted or reclassified into or exchanged for any other securities or property, to change the foregoing claim and payment provisions shall apply to such other security or property. To the extent that the Escrow Agent is required to deliver Escrow Shares to Parent under this Agreement, it shall deliver such Escrow Shares based on the respective ownership of the Escrow Shares among the shareholder partiesper share value stated herein.

Claims Against Escrow Shares. (a) At any time or times prior to the Expiration Date (as defined in Section 7 of this Escrow Agreement), Parent below) SWI may make claims against the Escrow Shares for amounts potentially eligible due for indemnification under Section 10.2 10 of the Merger Agreement by delivering (each such claim is hereinafter referred to as a "Claim"). SWI shall notify the Shareholders' Representative and the Escrow Agent in writing of each such Claim, including a brief description of the amount and nature of such Claim. Each such notice delivered to the Escrow Agent an Officer's Certificate prepared in accordance with Section 10.4 of by SWI shall contain a representation from SWI to the Merger Agreement, with effect that SWI has delivered a copy delivered at the same time of such notice to the Shareholders' Representative prior to or simultaneously with its delivery to the Escrow Agent. Upon In the earliest ofevent that the amount subject to the claim is unliquidated, SWI shall make a good faith estimate as to the amount of the claim for purposes of determining the number of Escrow Shares, if any, to be withheld by the Escrow Agent if such claim is not resolved or otherwise adjudicated by the Expiration Date. No distribution of the Escrow Shares shall be made by the Escrow Agent to SWI or to the Participating Holders of the Set Aside Amount (as defined in Section 3(b) below) with respect to each Claim until either: (i) receipt of such Claim has been resolved as evidenced by a written authorization from notice executed by SWI and the Shareholders' Representative instructing the Escrow Agent as to the distribution of such Set Aside Amount or from the Shareholders' Agent jointly with Parent to make such delivery, portion thereof; or (ii) receipt of written notice of a final decision in arbitration of the claimwith respect to disputed Claims, (iii) in the event the claim set forth in the Officer's Certificate is uncontested by the Shareholders' Agent, such dispute shall have been adjudicated in accordance with Section 10.5 of the Merger Agreement, and if the aggregate amount of undisputed claims exceeds $3,000,000, each such undisputed claim shall be deemed to have been acknowledged to be payable from the Escrow Shares in the full amount of the Damages (as defined in the Merger Agreement) set forth in the Officer's Certificate, and the Escrow Agent shall pay such amount to Parent as soon as practicable after expiration of the (twenty) 20 business day dispute period provided for arbitration procedures described in Section 10.5 of the Merger Agreement3(c) below. The Escrow Agent shall effect such payment of Escrow Shares to Parent SWI by surrendering the certificate representing the such Escrow Shares to ParentSWI's transfer agent (ChaseMellon Shareholder Services, L.L.C., 85 Cxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, XX 00060) for cancellation with instructions upon receipt by the Escrow Agent of a copy of a letter from SWI to its transfer agent, irrevocably instructing such transfer agent to issue a new certificate or certificates to the Escrow Agent for the number of remaining Escrow Shares remaining Shares, after giving effect to such payment and a certificate to Parent for the number of Escrow Shares constituting such payment. If the amount of the claim a Claim exceeds the aggregate value of the Escrow Shares, none of the Escrow Agent, the Shareholders' Agent, the Shareholders or any Company Indemnified Person Agent shall have no liability or responsibility for any deficiency. For purposes of determining how many Escrow Shares shall be delivered in satisfaction of any claim, each Escrow Share shall have a The value equal to the average of the closing prices for the common stock of Parent as reported for the primary trading session (currently ending at 4:00 p.m. on the Nasdaq National Market) during the period comprised of ten (10) consecutive trading days ending on the trading day two business days preceding delivery per share of the Escrow Shares to Parent in satisfaction for purposes of such claim this Agreement shall be $_______ (the "Escrow Share Closing Market Value"). The number of Escrow Shares to be paid to Parent by the Escrow Agent shall be calculated by dividing the amount of the Damages to which such claim relates by the Escrow Share Value. Any payment to Parent shall reduce the number of Escrow Shares in which the Shareholder or Shareholders obligated to make such payment have an interest. All claims paid out of the Escrow Shares shall be rounded to the nearest whole share. If the shares of Parent common stock originally constituting the Escrow Shares are converted or reclassified into or exchanged for any other securities or property, the foregoing claim and payment provisions shall apply to such other security or property. To the extent that the Escrow Agent is required to deliver Escrow Shares to Parent under this Agreement, it shall deliver such Escrow Shares based on the respective ownership of the Escrow Shares among the shareholder parties.

Claims Against Escrow Shares. (a) At any time or times prior to the Expiration Date (as defined in Section 7 of this Escrow Agreementbelow), Parent the Buyer may make claims (each a "Claim") (i) against up to fifty percent of the Escrow Shares for amounts potentially eligible due for indemnification under Section 10.2 of the Merger Agreement as agreed to by delivering each Employee Stockholder in an indemnification agreement delivered to the Buyer on the date hereof or (ii) against up to fifty percent of the Escrow Shares as specified in Section 1 hereunder. The Buyer shall notify the Stockholder Representative and the Escrow Agent in writing of each such Claim, including a brief description of the amount and nature of such Claim and the value per share of the Escrow Shares as set forth in this Section. Each such notice delivered to the Escrow Agent an Officerby the Buyer shall contain a representation of the Buyer to the effect that the Buyer has delivered a copy of such notice to the Stockholder Representative prior to or simultaneously with its delivery to the Escrow Agent. In the event that the amount subject to the Claim is unliquidated, the Buyer shall make a good faith estimate as to the amount of the Claim for purposes of determining the number of Escrow Shares, if any, to be withheld by the Escrow Agent if such claim is not resolved or otherwise adjudicated by the Expiration Date. If the Stockholder Representative disputes such Claim, the Stockholder Representative shall give written notice thereof to the Buyer and to the Escrow Agent within thirty (30) days after the date the Buyer's Certificate prepared notice of Claim was delivered to the Stockholder Representative, in which case the Escrow Agent shall continue to hold the Escrow Shares in accordance with Section 10.4 the terms of the Merger this Agreement; otherwise, with a copy delivered at the same time to the Shareholders' Agent. Upon the earliest of: (i) receipt of written authorization from the Shareholders' Agent or from the Shareholders' Agent jointly with Parent to make such delivery, (ii) receipt of written notice of a final decision in arbitration of the claim, (iii) in the event the claim set forth in the Officer's Certificate is uncontested by the Shareholders' Agent, in accordance with Section 10.5 of the Merger Agreement, and if the aggregate amount of undisputed claims exceeds $3,000,000, each such undisputed claim Claim shall be deemed to have been acknowledged to be payable from in shares out of the Escrow Shares in the full amount of the Damages (thereof as defined in the Merger Agreement) set forth in the Officer's Certificate, Claim and the Escrow Agent shall use its best efforts to pay such amount Claim from the Escrow Shares to Parent as soon as practicable the Buyer within three (3) business days after expiration of the (twenty) 20 business that thirty-day dispute period provided for in Section 10.5 of the Merger Agreementperiod. The Escrow Agent shall effect such payment of Escrow Shares to Parent the Buyer by surrendering the certificate representing the such Escrow Shares to Parentthe Buyer's transfer agent (Bank of Boston, c/o Boston EquiServe, L.P., Mail Stop 45-02-09, P. X. Xxx 000, Xxxxxx, XX 02102) for cancellation with instructions upon receipt by the Escrow Agent of a copy of a letter from the Buyer to the Buyer's transfer agent, instructing such transfer agent to issue a new certificate to the Escrow Agent for the number of remaining Escrow Shares remaining after giving effect to such payment and a certificate to Parent for the number of Escrow Shares constituting such payment. If the amount of the claim Claim exceeds the aggregate value of the Escrow Shares, none of the Escrow Agent, the Shareholders' Agent, the Shareholders or any Company Indemnified Person Agent shall have no liability or responsibility for any deficiency. For The value per share of the Escrow Shares for purposes of determining how many this Agreement shall be the closing price for the Escrow Shares shall be delivered in satisfaction of any claim, each Escrow Share shall have a value equal to the average of the closing prices for the common stock of Parent as reported for the primary trading session (currently ending at 4:00 p.m. on the Nasdaq National Market) during the period comprised of ten (10) consecutive trading days ending preceding the date of the notice by the Buyer of any Claim and such value shall be set forth in any such notice. The Escrow Agent may rely conclusively on the trading day two business days preceding delivery per share value set forth therein for the purpose of the Escrow Shares to Parent in satisfaction of such claim (the "Escrow Share Value"). The number of Escrow Shares to be paid to Parent by the Escrow Agent shall be calculated by dividing determining the amount of the Damages shares required to which such claim relates by the Escrow Share Value. Any payment to Parent shall reduce the number of Escrow Shares in which the Shareholder or Shareholders obligated to make such payment have an interestpay a Claim. All claims Claims paid out of the Escrow Shares shall be rounded to the nearest whole share. If Under no circumstances shall the shares of Parent common stock originally constituting Employee Stockholders or the Stockholder Representative have any right to substitute other property for the Escrow Shares are converted or reclassified into or exchanged for any other securities or property, to change the foregoing claim and payment provisions shall apply to such other security or property. To the extent that the Escrow Agent is required to deliver Escrow Shares to Parent under this Agreement, it shall deliver such Escrow Shares based on the respective ownership of the Escrow Shares among the shareholder partiesper share value stated herein.