Claims Upon Escrow Fund. (a) Upon receipt by the Escrow Agent on or before the Termination Date of a certificate signed by the chief financial or chief executive officer of Acquiror (an "Officer's Certificate"):
(i) stating that Acquiror or the Surviving Corporation has incurred, paid or properly accrued (in accordance with GAAP) or knows of facts giving rise to a reasonable probability that it will have to incur, pay or accrue (in accordance with GAAP) Damages in an aggregate stated amount with respect to which Acquiror or the Surviving Corporation is entitled to payment from the Escrow Fund pursuant to this Agreement; and
(ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was incurred, paid or properly accrued (in accordance with GAAP), or the basis for such anticipated liability and the specific nature of the breach to which such item is related, the Escrow Agent shall, subject to the provisions of Section 8.7 of this Agreement, deliver to Acquiror shares of Acquiror Common Stock, in an amount necessary to indemnify Acquiror for the Damages claimed; provided, however, that no shares of Acquiror Common Stock or cash shall be delivered to Acquiror, as a result of a claim based upon an accrual of, or upon a reasonable probability of having to incur, pay or accrue Damages until such time as the Acquiror has actually incurred or paid Damages. All cash and shares of Acquiror Common Stock subject to such claims shall remain in the Escrow Fund until Damages are actually incurred or paid or the Acquiror determines in its reasonably good faith judgment that no Damages will be required to be incurred or paid (in which event such cash and shares shall be distributed to the Principal Stockholder in accordance with Section 8.10 below).
(b) For the purpose of compensating Acquiror for its Damages pursuant to this Agreement, the Acquiror Common Stock in the Escrow Fund shall be valued as set forth in Section 8.2.
Claims Upon Escrow Fund. (a) In the event that any Buyer Indemnified Party has a Claim against the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreement, with a copy to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver to the Buyer Indemnified Party out of the Escrow Fund cash in an amount equal to the Damages as specified in the Claim Notice.
(b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof.
(c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall...
Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Parent (an "Officer's Certificate"): (A) stating that Parent has paid or accrued --------------------- Losses, and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable, cash or shares of Parent Common Stock (at the election of Parent) held in the Escrow Fund in an amount equal to such Losses.
Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by any appropriately authorized officer of Acquiror (an "OFFICER'S CERTIFICATE"):
(i) Stating the aggregate amount of Acquiror's Damages or an estimate thereof, in each case to the extent known or determinable at such time; and
(ii) Specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid or properly accrued or arose, and the nature of the misrepresentation, breach or claim to which such item is related, the Escrow Agent shall, subject to the provisions of Sections 10.3 and 10.8 hereof and of the Escrow Agreement, deliver to Acquiror out of the Escrow Fund, as promptly as practicable, Escrow Shares having a value equal to such Damages all in accordance with the Escrow Agreement and Section 10.6 below. Amounts paid or distributed from the Escrow Fund shall be paid or distributed pro rata among the Holders (as defined in the Escrow Agreement) based upon their respective percentage interests therein at the time.
Claims Upon Escrow Fund. Subject to the procedures set forth in Section 7.6:
(a) Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by any officer of the Buyer (an "Officer's Certificate"):
(i) stating that with respect to the indemnification obligations of Company Stockholders, Damages exist in an aggregate amount greater than $75,000, and
(ii) specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, the nature of the misrepresentation, breach of warranty or claim to which such item is related, the Escrow Agent shall, subject to the provisions of this Article VII, deliver to the Buyer out of the Escrow Fund, as promptly as practicable, Buyer Common Stock or other assets held in the Escrow Fund having a value equal to such Damages with respect to the indemnification obligations of Company Stockholders set forth in Section 7.1. The Escrow Agent shall use the Escrow Fund first to satisfy any Damages arising from claims other than the Intellectual Property Claims and any remainder in the Escrow Fund shall then be used to satisfy the Intellectual Property Claims to the extent possible.
(b) For the purpose of compensating the Buyer for its Damages pursuant to this Agreement, Buyer Common Stock in the Escrow Fund shall be valued at the Buyer Share Market Value as of the date of the Officer's Certificate delivered to the Escrow Agent.
Claims Upon Escrow Fund a. Upon receipt by the Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by the President, any Vice President or General Counsel of Parent (an "Officer's Certificate") (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses (expressed in U.S. Dollars at a conversion rate of 1.6113 U.S. Dollars to a British Pound (the "Conversion Rate")), and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or properly accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related, the Escrow Agent shall, subject to the provisions of Section 6 hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable, Escrow Shares (or a combination of Escrow Shares and cash determined in accordance with Section 4(c) hereof) having a value (determined pursuant to Section 5(b)) equal to such Losses.
b. For the purposes of determining the number of Escrow Shares to be delivered to Parent pursuant to Section 5(a) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent's Common Stock on the principal securities exchange on which Parent's Common Stock is then traded, or if not so traded, the National Market System of the National Association of Securities Dealers Automated Quotation system, in either case as reported in The Wall Street Journal, for the thirty (30) consecutive trading days ending on the date that is one (1) trading day prior to the Completion. Parent and the Securityholders' Agent shall certify such fair market value in a certificate signed by both Parent and the Securityholders' Agent, and shall deliver such certificate to the Escrow Agent.
c. Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 5(a) above) identifying Losses, the aggregate amount of which exceed $241,695, which Parent, the Securityholders' Agent and the Indemnifying Shareholders agree is the equivalent of L.150,000, converted to U.S. Dollars at the Conversion Rate, have been delivered to the
d. To the extent that the aggregate amount of Losses for which Parent is entitled to receive indemnification exceeds the value of Escrow Shares then held in the Escrow Fund, Parent shall be entitled to receive...
Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or ----------------------- before the Release Date of a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of Agile (an "Officer's Certificate") stating that with respect to the indemnification obligations of the Shareholder Indemnitors in Section 8.2, Damages exist and specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty, default of a covenant or other agreement or claim to which such item is related, or the manner in which it is related to a Digital Litigation Matter, the Escrow Agent shall, subject to the provisions of this Section 8, deliver to Agile out of the Escrow Fund, as promptly as practicable after the claim is determined to be undisputed or any dispute concerning the claim is resolved as set forth in this Section 8, Agile Common Stock, cash or other assets held in the Escrow Fund having a value equal to such Damages, provided, however, that if the claim is based on a third-party claim, including a Digital Litigation Matter, that has not been fully adjudicated or settled or is not otherwise reasonably quantifiable by objective means, then the Officer's Certificate shall so state and briefly describe the circumstances that affect the quantifiability of the claimed amount. At such time, if any, as Agile enters into a settlement pursuant to Section 8.9(b) with respect to a claim made in an Officer's Certificate that was unquantified and the Shareholders' Agent has not consented in writing to such settlement, Agile will file a supplementary Officer's Certificate (which may be filed after the Release Date) with respect to such claim. For the purpose of compensating Agile for its Damages pursuant to this Agreement, the Escrow Shares shall be valued at the Escrow Release Price (defined below). For purposes of this Agreement, the term "Escrow Release Price" shall mean the average of the closing price per share of Agile's Common Stock as quoted on the NASDAQ National Market System, as reported on the West Coast Edition of the Wall Street Journal, for the 10 consecutive trading days ending five (5) trading days (such average to include the closing price per share of Agile Common Stock on the first day of the five trading days) prior to the date on which the Escrow Agent releases the Escrow Shares to Agile in acc...
Claims Upon Escrow Fund. Upon receipt by the Escrow Agent and the Stockholder Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Acquirer in good faith (an “Officer’s Certificate”): (A) stating that Acquirer or another Acquirer Indemnitee has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses and the amount thereof, and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or properly accrued, or the basis for such anticipated liability, and the nature of the misrepresenta-tion, breach of warranty, agreement or covenant to which such item is related and the relevant section number of this Agreement, the Escrow Agent shall, subject to the provisions of Section 7.2(f), deliver to Acquirer out of the Escrow Fund, as promptly as practicable, cash held in the Escrow Fund in an amount equal to such Losses. Where the basis for a claim upon the Escrow Fund by Acquirer is that Acquirer reasonably anticipates that it will pay a Loss, no payment will be made from the Escrow Fund for such Loss unless and until such Loss is actually paid and a further Officer’s Certificate with respect thereto is delivered to the Escrow Agent and the Stockholder Agent hereunder.
Claims Upon Escrow Fund. (a) The Escrow Agent shall set aside such Parent Shares or other assets held in the Escrow Fund as applicable in an amount equal to the potential Damages for each claim upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by any officer of Parent (an "Officer's Certificate"):
(i) stating that actual or potential Damages exist from unreimbursed claims in an aggregate amount greater than the Indemnity Threshold for claims against the Escrow Fund; and
(ii) specifying in reasonable detail the individual items included in the amount of Damages in such claim, the date each such item was paid, properly accrued or arose and the nature of the misrepresentation, breach of warranty or claim to which such item is related.
(b) 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, or (iii) in the event the claim set forth in the Officer's Certificate is uncontested by the Shareholders' Agent as of the close of business on the next business day following the twentieth (20th) day following receipt by the Shareholders' Agent of the Officer's Certificate; on the next business day the Escrow Agent shall deliver Parent Shares or other assets from the Escrow Fund to Parent having a value equivalent to the Damages.
(c) For the purpose of compensating Parent for its Damages pursuant to this Agreement, the Parent Shares in the Escrow Fund shall have a deemed value equal to the average of the mean between the closing bid and ask prices as reported for the primary trading session (currently ending at 4:00 p.m. on the NNM) during the period comprised of ten (10) consecutive trading days ending on the second trading day immediately preceding receipt of such Parent Shares by Parent in satisfaction of such Claim.
(d) No Indemnified Person shall have the right to pursue a claim for Damages against the Escrow Fund or the Company shareholders other than through Parent.
Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Parent (an "OFFICER'S CERTIFICATE"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or properly accrued, or the basis for such anticipated liability, and the nature of the misrepresentations, breach of warranty or covenant to which such items is related, and (C) specifying the number of Escrow Shares necessary to satisfy such claim, the Escrow Agent shall, subject to the provisions of Section 7.3(e), deliver to Parent out of the Escrow Fund as promptly as practicable, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses.
(ii) For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund as indemnity pursuant to Section 7.3(b) and 7.3(d)(i) hereof, the shares of Parent Common Stock shall be valued at the Trading Price.
