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 any officer of Buyer (an "Officer's Certificate"): (A) stating that Buyer has paid or properly accrued or, with respect to third-party claims of which Buyer, the Company or the Surviving Corporation has received notice, reasonably anticipates that it will have to pay or accrue 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 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 deliver to Buyer out of the Escrow Fund, as promptly as practicable subject to Section 7.2.6, shares of Buyer Common Stock held in the Escrow Fund with a value equal to such Losses; provided, however, that in the event of a third party claim that is the subject of the demand on the Escrow Fund, no shares shall be delivered out of the Escrow Fund until the claim is settled or adjudicated.
(b) For the purposes of determining the number of shares of Buyer Common Stock to be delivered to Buyer out of the Escrow Fund as indemnity pursuant to Section 7.2.5(a) hereof, the shares of Buyer Common Stock shall be valued at $33 per share, unless the average closing price of the Buyer Common Stock for any five (5) consecutive trading days during the thirty (30) day period preceding the assertion of a particular indemnity claim exceeds $50 per share, in which case the shares of Buyer shall be valued at $50 per share or, if the average closing price of the Buyer Common Stock for any five (5) consecutive days during the thirty (30) day period preceding the assertion of a particular indemnity claim is less than $16 per share, then the shares of Buyer shall be valued at $16 per share (subject to in each case to the adjustment as a result of the Buyer Stock Split).
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 Certificate"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue 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 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 7.2(f) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses.
(ii) For purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Common Stock on the Nasdaq National Market for the five (5) consecutive trading days ending five (5) trading days prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.
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. (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. 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. If the Parent Indemnitees shall have any claim for indemnification against the Holder under this Agreement on or before the Escrow Termination Date, they shall make a claim against the Escrow Fund in the following manner. A duly authorized officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's Certificate") stating that with respect to the indemnification obligations of the Holder set forth in Section 9.1, Losses exist and specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Losses, the date each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty, covenant or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30) days following receipt of the Officer's Certificate deliver from the Escrow Fund to the Parent, as promptly as practicable, such portion of the Escrow Shares as is equal to such Losses, provided that no such delivery may be made if the Holder shall have objected in a written statement to the claim made in the Officer's Certificate, and such statement shall have been delivered to the Escrow Agent and the Parent prior to the expiration of such thirty (30) day period. Notwithstanding any provision of this Agreement, for the purpose of compensating the Parent Indemnitees for their Losses or calculating the value of Escrow Shares or Additional Escrow Shares to be released pursuant to this Agreement and delivered to the Parent, the Parent Common Stock in the Escrow Fund shall be valued at the Merger Share Per Share Value.
Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time before 5:00 p.m. (California Time) on 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 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 7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable, shares of Parent Common 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 to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common shall be valued at a price equal to the closing price of Parent Common in trading on the Nasdaq National Market on the last trading day immediately prior to the Closing Date (the "Parent Price Per Share"). The Parent Price Per Share shall be certified to the Escrow Agent in an Officer's Certificate.
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. 54 Section 8.5
