Common use of Claims Upon Escrow Fund Clause in Contracts

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. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make Expiration Date of a claim against the Escrow Fund in the following manner. A duly authorized certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's CertificateOFFICER'S CERTIFICATE"): (A) stating that Parent has paid or properly accrued (in accordance with respect to the indemnification obligations of the Holder set forth in Section 9.1GAAP) Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paid, paid or properly accrued or aroseaccrued, and the nature of the misrepresentation, breach of warranty, covenant covenant, obligation or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30shall, subject to the provisions of Section 8.2(f) days following receipt hereof, deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock and Parent Preferred Stock held in the Escrow Shares as is Fund in an amount equal to such Losses, provided that no such delivery may be made if . (ii) For the Holder shall have objected in a written statement to purposes of determining 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 number of such thirty (30) day period. Notwithstanding any provision shares 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 and Parent Preferred Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 8.2(d)(i) hereof, the shares of Parent Common Stock and Parent Preferred Stock shall be valued at $5.00 per share, regardless of class. Notwithstanding the Merger Share Per Share Valueforegoing, the Securityholder Agent shall have the right to pay any indemnifiable Losses owed to Parent hereunder in cash, in lieu of having the Escrow Agent release the number of Shares of Parent Capital Stock in satisfaction of such claim, and upon the Escrow Agent receiving cash in an amount of the indemnifiable Losses, the Escrow Agent shall release to the shareholders that number of shares as it would have released to Parent hereunder in satisfaction of such claim.

Claims Upon Escrow Fund. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make a claim against last day of the Escrow Fund in the following manner. A duly authorized Period of a certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's CertificateOFFICER'S CERTIFICATE"): (A) stating that with respect Parent has paid or properly accrued or reasonably anticipates that it will have to the indemnification obligations of the Holder set forth in Section 9.1pay or accrue Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paidpaid or properly accrued, or properly accrued or arosethe basis for such reasonably anticipated liability, and the nature of the misrepresentation, breach of warranty, warranty or covenant or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30shall, subject to the provisions of Section 7.2(e) days following receipt hereof, transfer to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock held in the Escrow Shares as is Fund in an amount equal to such Losses, provided that no such delivery may . Such payments of shares from the Escrow Fund will be made if the Holder shall have objected pro rata in a written statement proportion to the claim made in the Officer's Certificate, and such statement shall have been delivered stockholders original contributions to the Escrow Agent and Fund. (ii) For the Parent prior to purposes of determining the expiration number of such thirty (30) day period. Notwithstanding any provision shares 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 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 Merger Share Per Share ValueAverage Price (as defined in Section 1.6(h)(iii)). Parent and the Stockholder Agent shall certify such fair market value in a certificate signed by both Parent and the Stockholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. If (a) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make Expiration Date of a claim against the Escrow Fund in the following manner. A duly authorized certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's Certificate") set forth on Schedule B hereof or such officers' successors, the ---------- identity of whom the Escrow Agent shall be informed of by a writing signed by another Parent officer: (A) stating that with respect Parent has paid or properly accrued or reasonably anticipates that it will have to the indemnification obligations of the Holder set forth in Section 9.1pay or accrue Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paidpaid or properly accrued, or properly accrued or arosethe basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty, warranty or covenant or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30) days following receipt shall, subject to the provisions of Section 6 hereof, deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock held in the Escrow Shares as is Fund in an amount equal to such Losses, provided that no such delivery may be made if . (b) For the Holder shall have objected in a written statement to purposes of determining 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 number of such thirty (30) day period. Notwithstanding any provision shares 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 to be delivered to Parent out of the Escrow Fund pursuant to Section 5(a) hereof, the shares of Parent Common Stock shall be valued at the Merger Share Per Share ValueAverage Closing Price. Parent and the Securityholder Agents shall certify such determined value in a certificate signed by both Parent and the Securityholder Agents, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make Expiration Date of a claim against the Escrow Fund in the following manner. A duly authorized certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's Certificate"): (A) stating that with respect to the indemnification obligations of the Holder set forth in Section 9.1Parent has paid or properly accrued Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paid, paid or properly accrued or aroseaccrued, and the nature of the misrepresentation, breach of warranty, covenant or claim obligation to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30shall, subject to the provisions of Section 8.2(f) days following receipt hereof, deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock and cash held in the Escrow Shares as is Fund in an amount equal to such Losses. If such amounts become due from the Escrow Fund before the due date of the Escrow Note, provided that no such delivery may the Escrow Note shall 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 exchanged by the Escrow Agent and Parent for a substitute note of like tenor, except that the Parent prior interest and outstanding principal balance thereon shall be adjusted to take into account any payment on account of the expiration Loss in such Officer's Certificate payable under this Article VIII. (ii) For the purposes of such thirty (30) day period. Notwithstanding any provision determining the number of this Agreement, for the purpose shares 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 to be delivered to Parent out of the Escrow Fund pursuant to Section 8.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the Merger Share Per Share Valueaverage of the closing prices of Parent's Common Stock on the Nasdaq Stock Market for the thirty (30) consecutive trading days ending three days prior to the Expiration Date. Parent and the Securityholder Agent shall certify such determined 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. If the Parent Indemnitees shall have any claim for indemnification against the Holder Shareholders 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 Shareholders 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 9.109.9, 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 Shareholders 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 Shares shall be valued at the Merger Share Per Share ValueValue as of the Effective Date.

Claims Upon Escrow Fund. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make a claim against last day of the Escrow Fund in the following manner. A duly authorized Period of a certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's CertificateOFFICER'S CERTIFICATE"): (A) stating that with respect Parent has paid or properly accrued or reasonably anticipates that it will have to the indemnification obligations of the Holder set forth in Section 9.1pay or accrue Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paidpaid or properly accrued, or properly accrued or arosethe basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty, warranty or covenant or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30shall, subject to the provisions of Section 7.2(e) days following receipt hereof, deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares 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 held in the Escrow Fund in an amount equal to any Losses incurred or accrued by Parent. (ii) For the 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, each share of Parent Common Stock shall be valued at the Merger Share Per Share Valueclosing price 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 Nasdaq National Market, in either case as reported in THE WALL STREET JOURNAL on the Closing Date. Parent and the Securityholder Agent 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. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make Expiration Date of a claim against the Escrow Fund in the following manner. A duly authorized certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's Certificate"): (A) stating that with respect to the indemnification obligations of the Holder set forth in Section 9.1Parent has paid or properly accrued Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paid, paid or properly accrued or aroseaccrued, and the nature of the misrepresentation, breach of warranty, covenant or claim obligation to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30shall, subject to the provisions of Section 7.2(f) days following receipt hereof, deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock and cash held in the Escrow Shares as is 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 pursuant to Section 7.2(d)(i) hereof, provided that no the shares of Parent Common Stock shall be valued at $50.00 per share. Parent and the Securityholder Agent shall certify such delivery may be made if the Holder shall have objected determined value in a written statement to certificate signed by both Parent and the claim made in the Officer's CertificateSecurityholder Agent, and shall deliver such statement shall have been delivered certificate to the Escrow Agent and the Parent prior to the expiration of such thirty (30) day periodAgent. 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 Parentforegoing, the Securityholder Agent shall have the right to pay any indemnifiable Losses owed to parent hereunder in cash, in lieu of having the Escrow Agent release the number of shares of Parent Common Stock in satisfaction of such claim, and upon the Escrow Fund Agent receiving cash in an amount of the indemnifiable Losses, the Escrow Agent shall be valued at release to the Merger Share Per Share Valuestockholders that number of shares as it would have released to Parent hereunder in satisfaction of such claim.

Claims Upon Escrow Fund. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make Expiration Date of a claim against the Escrow Fund in the following manner. A duly authorized certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "Officer's OFFICER'S Certificate"): (A) stating that Parent has paid or properly accrued (in accordance with respect to the indemnification obligations of the Holder set forth in Section 9.1GAAP) Losses, Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paid, paid or properly accrued or aroseaccrued, and the nature of the misrepresentation, breach of warranty, covenant covenant, obligation or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30shall, subject to the provisions of Section 8.2(f) days following receipt hereof, deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock held in the Escrow Shares as is 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 pursuant to Section 8.2(d)(i) hereof, provided that no such delivery may the shares of Parent Common Stock shall be made if valued at $11.00 per share. Notwithstanding the Holder foregoing, the Securityholder Agent shall have objected the right to pay any indemnifiable Losses owed to Parent hereunder in a written statement to the claim made cash, in the Officer's Certificate, and such statement shall have been delivered to lieu of having the Escrow Agent and release the Parent prior to the expiration number of such thirty (30) day period. Notwithstanding any provision Shares 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 satisfaction of such claim, and upon the Escrow Fund Agent receiving cash in an amount of the indemnifiable Losses, the Escrow Agent shall be valued at release to the Merger Share Per Share Valueshareholders that number of shares as it would have released to Parent hereunder in satisfaction of such claim.

Claims Upon Escrow Fund. If (i) Upon receipt by the Parent Indemnitees shall have Escrow Agent at any claim for indemnification against the Holder under this Agreement time on or before the Escrow Termination Date, they shall make a claim against last day of the Escrow Fund in the following manner. A duly authorized Period of a certificate signed by any officer of Parent shall prepare and execute and deliver to Holder and the Escrow Agent a certificate (an "“Officer's ’s Certificate"”): (A) stating that with respect Parent has paid or properly accrued or reasonably anticipates that it will have to the indemnification obligations of the Holder set forth in Section 9.1, pay or accrue Losses exist and (B) specifying in reasonable detail the individual items of such Losses included in the amount so stated and the basis of the claim for such Lossesstated, the date each such item was paidpaid or properly accrued, or properly accrued or arosethe basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty, warranty or covenant or claim to which such item is related. Subject to Section 9.10, the Escrow Agent shall after thirty (30) days following receipt shall, subject to the provisions of Section 7.3(e), deliver to Parent out of the Officer's Certificate deliver from the Escrow Fund to the ParentFund, as promptly as practicable, such portion shares of Parent Common Stock held in the Escrow Shares as is Fun d in an amount equal to such Losses, provided that no such delivery may be made if . (ii) For the Holder shall have objected in a written statement to purposes of determining 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 number of such thirty (30) day period. Notwithstanding any provision shares 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 to be delivered to Parent out of the Escrow Fund pursuant to Section 7.3(d)(i) , each share of Parent Common Stock shall be valued at the Merger Share Per Share ValuePre-Closing Trading Price of Parent Common Stock. Parent and the Securityholder Agent shall certify the Pre-Closing Trading Price in a certificate signed by both Parent and the Securityholder Agent and shall deliver such certificate to the Escrow Agent at Closing. For purposes of determining which shares of Parent Common Stock will be delivered to Parent out of the Escrow Fund, shares will be delivered from each Company Stockholder pursuant to such Company Stockholder’s pro-rata interest in the Escrow Fund; provided however, that to the extent possible, with respect to each Company Stockhol der, such shares shall be vested and not subject to a right of repurchase, forfeiture, or other condition.