Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Samples: Escrow Agreement (Cambridge Technology Partners Massachusetts Inc), Escrow Agreement (Cambridge Technology Partners Massachusetts Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative Holder gives written notice to Cambridge Merilus USA and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters relating to such Contested Claim that are subject to third party claims against Cambridge Merilus USA or Excell Merilus Canada in a litigation or arbitration shall will await the final decision, award or settlement of such litigation or arbitration, while matters relating to such Contested Claim that arise between Cambridge Merilus USA on the one hand and Excell Merilus Canada and/or the Holders Holder on the other hand, including any disputes regarding breach of representations and warranties or performance or nonperformance of a party's obligations under this Escrow the Reorganization Agreement ("Arbitrable Claims"), ----------------- shall ) will be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Merilus USA and the Indemnification Representative shall Holder will be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeHolder, then the Custodian shall Escrow Agent will hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the 140 number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: :
(i) receipt of a settlement agreement executed by Cambridge Merilus USA and the Indemnification Representative Holder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) ;
a. receipt of a written notice from Cambridge Merilus USA (a "Cambridge Merilus Usa Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall Merilus USA will at the same time provide a copy of the Cambridge Merilus USA Distribution Notice to the Indemnification RepresentativeHolder); or (iii) or
b. receipt of a written notice from the Indemnification Representative Holder (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall Holder will at the same time provide a copy of the Representative Distribution Notice to CambridgeMerilus USA). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shallEscrow Agent will, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Merilus USA Distribution Notice, as applicable, ,
(a) release to Cambridge Merilus USA of that portion of the number of Escrow Shares Fund specified in the Escrow Adjustments and and
(b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow SharesFund. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shallEscrow Agent will, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall Fund will continue to be held pursuant to the terms of this Escrow Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Golden Soil Inc), Agreement and Plan of Reorganization (Golden Soil Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided aboveFirst Notice Period, matters that are subject to third party claims against Cambridge Parent or Excell INT'X.xxx in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell INT'X.xxx and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares as specified in the Release Notice as Retained Escrow (as defined in Section 3.1) or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Distribution NoticePARENT DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Parent Distribution Notice as the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares and the related stock transfer powers. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained balance of the Escrow (as defined in Section 3.1)Shares and the related stock transfer powers, pro rata in accordance with the Holders' interests thereinEXHIBIT 1.1, provided that PROVIDED THAT if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either Parent in satisfaction of Damages or as and Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares (determining value as provided in the penultimate sentence of Section 2.1 above, and in any event, subject to the first sentence of such Section 2.1) to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Samples: Escrow Agreement (Lionbridge Technologies Inc /De/), Escrow Agreement (Jeanty Roger O)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim within the 30-day period provided above (a "Contested Claim"), (i) within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge --------------- Parent or Excell Opal in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitrationarbitration the time for appeal having passed, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ---------- Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Parent and ------ Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative, the Escrow Agent shall not be a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice (as defined in Section 3.1 below) or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent ------ Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the an ------------------- arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") ---------------------------------- attaching a copy of the final award or ----------------------------------- decision of an arbitrator under paragraph (c) below setting forth the arbitrator Escrow Adjustments or providing that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If Upon the earliest occurrence of any of the three events described in the preceding sentence is (i) or (ii)sentence, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or one of the Cambridge Distribution Noticenotices described in clauses (ii) or (iii) above, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or findingDate
1. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 2 contracts
Samples: Escrow Agreement (Transwitch Corp /De), Escrow Agreement (Transwitch Corp /De)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Buyer and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters relating to such Contested Claim that are subject to third party claims against Cambridge Buyer or Excell the Company in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters relating to such Contested Claim that arise between Cambridge Buyer on the one hand and Excell the Company and/or the Holders on the other hand, including any disputes regarding breach of representations and warranties or performance or nonperformance of a party's obligations under this Escrow the Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Buyer and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Buyer and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Buyer (a "Cambridge Distribution NoticeBUYER DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Buyer shall at the same time provide a copy of the Cambridge Buyer Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeBuyer). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Buyer Distribution Notice, as applicable, (a) release to Cambridge Buyer of that portion of the number of Escrow Shares Fund specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesFund. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares Fund shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Samples: Escrow Agreement (Teradyne Inc)
Contested Claims. In If the event that the Indemnification ---------------- Representative gives Shareholders give written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim to DPRC and the Escrow Agent (a "Contested Claim") within the 3020-day --------------- period provided above, matters that are subject to third party claims Claims brought against Cambridge DPRC or Excell the Shareholders in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge DPRC on the one hand and Excell and/or the Holders Shareholders on the other hand, including any disputes regarding performance or nonperformance non-performance of a party's obligations under this Escrow Agreement ("Arbitrable Disputed Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) 3.4(c), below. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a3.4(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Sharesabove. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeShareholders, then the Custodian Escrow Agent shall hold hereunder in the Escrow Account, after what would otherwise be the Final Release Date Date, Escrowed Shares having a value (determined pursuant to Section 2.2, above, as defined of the Final Release Date) sufficient to cover Damages alleged in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until such Claim and to the earlier of: of (i) receipt of a settlement agreement executed by Cambridge DPRC and the Indemnification Representative Shareholders setting forth a the resolution of the Notice of Claim and setting forth the Escrow Adjustments; number of Escrowed Shares, if any, to be released to DPRC, or (ii) receipt of a written notice from Cambridge DPRC (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative DPRC Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are Arbitrator and setting forth the number of Escrowed Shares, if any, to be made released to DPRC as a result of such award (the Indemnification Representative DPRC shall at the same time provide a copy of the Representative DPRC Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) Shareholders; if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has award does not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Escrowed Shares to be so released released, the Shareholders shall have 20 calendar days to Cambridge either object to the calculation of the number of Escrowed Shares to be released, but not to the award itself; in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent receives any such objection within such 20-day period, the Escrow Agent shall be entitled to require that the matter be resolved by a notice from both DPRC and the Shareholders or by a clarification of the award.) If the Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute or, if the parties are unable to agree, pursuant to this Section 2.3(b3.4(b) and Section 2.3(c3.4(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell Natchez in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell Natchez and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the any such case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common SharesStock. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares less any Escrow Shares necessary to satisfy any remaining unresolved Contested Claims for which sufficient Escrow Shares have not been allocated. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Escrow Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Sellers’ Representative gives may contest a claim made under Section 3(a), 3(b) or 6 hereof, and Buyer may contest a claim under Section 3(d) hereof, if it reasonably believes there is a basis for disputing such claim, by giving prompt written notice (a “Contest Notice”) to Cambridge the Escrow Agent and the Custodian contesting all Buyer or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided aboveSellers’ Representative, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement may be, but in any event prior to the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received respective dates for payment by the Custodian that a Notice of Claim is contested by the Escrow Agent pursuant to an Adjustment Notice, Indemnification RepresentativeNotice, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Disbursement Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Tax Distribution Notice, as applicablethe case may be (a “Contested Claim”). Such Contest Notice shall set forth, (a) release in reasonable detail, each disputed item or amount and the basis of the disagreement. Buyer and Sellers’ Representative first shall attempt in good faith to Cambridge resolve all of the number of Escrow Shares specified issues set forth in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release Contest Notice prior to the Holders twentieth day following the balance date of receipt by the Escrow Agent of a Contest Notice. After such negotiation period, Buyer and Sellers’ Representative shall deliver joint written instructions to the Escrow Agent directing the Escrow Agent to disburse any portion of the Escrow Shares. If the earliest of the three events described above is (iii) Funds with respect to which all disputes have been resolved, and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), Agent shall make such disbursements in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or findingsuch instructions. In the event that Buyer and Sellers’ Representative cannot reach an agreement during such negotiation period, then the Custodian institutes Escrow Agent shall not make any payment out of the applicable Escrow Account until such dispute is resolved. If such dispute is resolved pursuant to judicial process, then upon receipt of a certificate from an action for interpleader officer of the Buyer or a certificate from Sellers’ Representative stating that such dispute has been finally resolved and attaching thereto a final and non-appealable judgment of a court of competent jurisdiction resolving such dispute and stating the amount of such judgment which remains unsatisfied, the Escrow Agent shall make such payment in accordance with such judgment and the provisions of Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)3 hereof.
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Delano and the Custodian contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Delano or Excell DA in a litigation or arbitration proceeding shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Delano on the one hand and Excell DA and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Delano and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares and amount of Cash Escrow specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Delano and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Delano (a "Cambridge Distribution NoticeDELANO DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Delano shall at the same time provide a copy of the Cambridge Delano Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeDelano). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Delano Distribution Notice, as applicable, (a) release to Cambridge Delano the number of Escrow Shares and amount of Cash Escrow specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares and the Cash Escrow. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in in, and subject to the provisions of, Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares and Cash Escrow shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares and Cash Escrow are to be released to Cambridge Delano either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares and amount of Cash Escrow to be so released to Cambridge Delano either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In If the event that Lead Shareholder (or the Indemnification ---------------- Representative Relevant Shareholder, as applicable) gives written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim to Talarian and the Escrow Agent (a "Contested Claim") within the 30-20 calendar day --------------- period provided above, matters that are subject to third party claims Claims brought against Cambridge Talarian or Excell any other Claiming Party in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Talarian or any other Claiming Party on the one hand and Excell and/or the Holders Shareholders (or the Relevant Shareholder, as applicable) on the other hand, including any disputes regarding performance or nonperformance non-performance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) 4.4(c), below. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a4.4(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Sharesabove. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeShareholders (or the Relevant Shareholder, as applicable), then the Custodian Escrow Agent shall hold hereunder in the Escrow Account, after what would otherwise be the First Release Date (or Second Release Date, as defined in Section 3.1 belowapplicable), Escrowed Shares having a value sufficient to cover Damages alleged in such Claim (valuing any Escrowed Shares at the number Fair Market Value as of the date the Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, Agent receives notice that such Claim is being contested) until the earlier of: of (i) receipt of a settlement agreement executed by Cambridge Talarian and the Indemnification Representative Shareholders (or the Relevant Shareholder, as applicable) setting forth a the resolution of the Notice of Claim and setting forth the Escrow Adjustments; number of Escrowed Shares to be released to Talarian, or (ii) receipt of a written notice from Cambridge Talarian (a "Cambridge Talarian Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge number of Escrowed Shares, if any, to be released to Talarian as a result of such award, unless objected to by the Shareholders as described in Section 3.2 above. Talarian shall at the same time provide a copy of the Cambridge Talarian Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall Shareholders at the same time provide a copy of as it provides such notice to the Representative Distribution Notice to Cambridge)Escrow Agent. If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Agent institutes an action for interpleader in accordance with Section 4.6 5.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute or, if the parties are unable to agree, pursuant to this Section 2.3(b4.4(b) and Section 2.3(c4.4(c), below.
Appears in 1 contract
Samples: Agreement With Certain Whitebarn Shareholders (Talarian Corp)
Contested Claims. In the event that the Indemnification ---------------- Representative any Seller or Shareholder gives written notice to Cambridge and the Custodian contesting all or a portion of a Notice of Claim to Buyer and Escrow Agent (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters the following procedures shall apply: (i) Claims that are subject to third the result of third-party claims asserted against Cambridge or Excell in a litigation or arbitration shall Buyer will await the final decision, award or settlement of such litigation third-party claim; provided that any such asserted third-party claim will be deemed resolved in favor of Buyer if, within twelve (12) months following the End of the Escrow Term, such asserted third-party claim does not result in the actual commencement of, or arbitrationwritten correspondence threatening the commencement of, while matters any litigation, arbitration or other proceedings by the third-party claimant, provided, however, that arise between Cambridge Buyer shall not lose its right to make a Claim with respect thereto, if such third-party claim is once again asserted against Buyer prior to expiration of the twelve-month period following the End of the Escrow Term; and/or (ii) Claims by Buyer for breaches of representations, warranties, agreements and covenants by any of Sellers or Shareholders under the Transaction Agreements that do not include claims asserted by third parties, will be settled as provided for in the relevant Transaction Agreement under which the Claims arose, as will Claims based on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations third-party claims successfully asserted under this Escrow Agreement clause ("Arbitrable Claims"i), ----------------- shall be settled but which any Seller or Shareholder asserts do not result in accordance with Section 2.3(c) belowan indemnification obligation under any Transaction Agreement in favor of Buyer. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge will be considered resolved and the Indemnification Representative Escrow Agent shall be resolved instructed in writing by Buyer as to any disbursement to make as set forth above in Section 2.3(aSECTION 4(A). If any Contested Claim which is a third-party claim asserted against Buyer under clause (i) is resolved against Buyer and as to which no Seller or Shareholder disputes the indemnification obligation, provided that then such Contested Claim will be considered resolved and Escrow Agent will promptly transfer to Buyer the amount of Escrow Cash as directed in writing by Buyer, having a value (determined pursuant to SECTION 4(C) hereof) equal to the amount of damages specified in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested which has not been paid by end of the Indemnification RepresentativeEscrow Term and will notify Sellers and Shareholders of such transfer in writing within five (5) business days of such transfer. After receipt of notice that a Claim has been contested, then Escrow Agent will continue to hold in the Custodian shall hold hereunder after what would otherwise be Escrow Account the Release Date (as defined in Section 3.1 below), the number amount of Escrow Shares specified Cash as directed in writing by Buyer sufficient to cover such Contested Claim (notwithstanding the Release Notice or as otherwise provided in Section 3.1, expiration of the Escrow Term) until the earlier of: (i) receipt execution of a settlement agreement executed by Cambridge Buyer and the Indemnification Representative subject Seller or Shareholder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; Claim, or (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award of the arbitrator or court, as applicable. The final decision of the arbitrator or court, as applicable will be furnished to each of Sellers and setting forth Shareholders and Buyer in writing and will constitute a conclusive determination of the issue in question, binding upon the parties. In acting under this Agreement the Escrow Adjustments (Cambridge Agent shall at the same time provide be entitled to receive and may conclusively rely on a copy certificate of the Cambridge Distribution Notice presenting party to the Indemnification Representative); or (iii) receipt of effect that a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a true and correct copy of the final award or ----------------------------------- decision of the arbitrator or court is attached and that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence decision is (i) or (ii)final, the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments binding and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)non-appealable.
Appears in 1 contract
Contested Claims. In (a) Each claim by Xxxxx pursuant to Section 9.2 hereof or claim by the event that the Indemnification ---------------- Representative gives written notice shareholders of PixelCam pursuant to Cambridge and the Custodian contesting all or a portion of a Notice of Claim Section 9.7 hereof (each, a "Contested Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall will be settled in accordance with by binding arbitration pursuant to Section 2.3(c9.8(c) belowhereof unless otherwise agreed by the Principal Shareholders and Xxxxx. Any portion of a Notice of the Indemnification Claim that which is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a)5(b) of the Escrow Agreement. The final decision of the arbitrator shall be furnished to the Escrow Agent, provided the Principal Shareholders and Xxxxx in writing and will constitute a conclusive determination of the issue in question, binding upon PixelCam, the shareholders of PixelCam and Xxxxx and shall not be contested or appealed by any of them. After notice that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Indemnification Claim is contested by the Principal Shareholders, the Escrow Agent will continue to hold in the Escrow Fund Escrow Shares having a value sufficient to cover such Indemnification RepresentativeClaim, then as determined pursuant to Section 2 of the Custodian shall hold hereunder after what would otherwise be Escrow Agreement (notwithstanding the expiration of the Release Date (as defined in Section 3.1 belowDate), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: of (i) receipt execution of a settlement agreement executed by Cambridge Xxxxx and the Indemnification Representative Principal Shareholders setting forth a resolution of the Notice of Claim and the Escrow Adjustments; Indemnification Claim, or (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and arbitrator.
(b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the The number of Escrow Shares to be so released delivered or held in Escrow pursuant to Cambridge either in a Contested Claim shall be equal to (i) the arbitrator's final award or decision or a supplementary report or finding. In aggregate dollar amount of the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement Contested Claim as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute determined pursuant to this Section 2.3(b9.8 divided by (ii) the value of the Escrow Shares on the Effective Date.
(c) Any Contested Claim shall be settled by arbitration in Palo Alto, California and, except as herein specifically stated, in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA Rules") then in effect. However, in all events, these arbitration provisions shall govern over any conflicting rules which may now or hereafter be contained in the AAA Rules. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the subject matter thereof. The arbitrator shall have the authority to grant any equitable and Section 2.3(c)legal remedies that would be available in any judicial proceeding instituted to resolve a Contested Claim.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Zoran Corp \De\)
Contested Claims. In the event that the Indemnification ---------------- Representative Holder gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "“Contested Claim"”) within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell DJCE in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell and/or the Holders DJCE on the other hand, including any disputes regarding performance or nonperformance of a party's ’s obligations under this Escrow Agreement ("“Arbitrable Claims"), ----------------- ”) shall be settled in accordance with Section 2.3(c) below. Parent and Holder shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). Parent and Holder agree that any Arbitrable Claim is between the Parent and Holder, and the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative Holder shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification RepresentativeHolder, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative Holder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge “Parent Distribution Notice"”) attaching a ----------------------------- copy of the final award or decision of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification RepresentativeHolder); or (iii) receipt of a written notice from the Indemnification Representative Holder (a "Representative “Holder Distribution Notice"”) attaching a copy of the final award or ----------------------------------- decision of the an arbitrator under paragraph (c) below that no Escrow Adjustments are to be made as a result of such award Notice of Claim (the Indemnification Representative Holder shall at the same time provide a copy of the Representative Holder Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Holder Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's ’s final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Shareholders Representative gives written notice to Cambridge Buyer and the Custodian Escrow Agent contesting all or a portion of a Claim Notice of Claim (a "Contested Claim") within the thirty (30-) day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge on the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- matter shall be settled in accordance with this Section 2.3(c) below2.3.2. Any portion of a Claim Notice of Claim that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares2.3.1. If written notice is received by the Custodian Escrow Agent that a Claim Notice of Claim is contested by the Indemnification RepresentativeShareholders Representative or if any dispute exists with respect to an amount to be distributed under Section 2.3.1, then the Custodian Escrow Agent shall hold hereunder in the General Claim Fund or Designated Claim Fund, as applicable, after what would otherwise be the applicable Partial Escrow Release Date or General Escrow Release Date (as defined in Section 3.1 belowthe case of General Claims) or Designated Release Date (in the case of Designated Claims), the number amount of Escrow Shares Funds, as specified in the Release Claim Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement joint instructions executed by Cambridge Buyer and the Indemnification Shareholders Representative setting forth a resolution of the Claim Notice of Claim and the portion of Escrow AdjustmentsFunds to be delivered to Buyer and, if a Partial Escrow Release Date or Escrow Release Date has occurred with respect to the applicable fund against which the Claim was made, the portion (if any) of the Escrow Funds to be delivered to the Shareholders (such joint instructions, "Joint Instructions"); (ii) receipt of a written notice from Cambridge Buyer (a "Cambridge Buyer Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator court or Accounting Arbitrator and setting forth the portion of Escrow Adjustments Funds to be delivered to Buyer (Cambridge Buyer shall at the same time provide a copy of the Cambridge Buyer Distribution Notice to the Indemnification Shareholders Representative); or (iii) receipt of a written notice from the Indemnification Shareholders Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator court or Accounting Arbitrator that no portion of Escrow Adjustments are Funds is to be made delivered to Buyer as a result of such award (the Indemnification Representative Shareholder Representatives shall at the same time provide a copy of the Representative Distribution Notice to CambridgeBuyer). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of Promptly upon receipt of the settlement agreement or the Cambridge a Buyer Distribution Notice, as applicable, (a) release to Cambridge the number Escrow Agent shall provide a copy of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release such notice to the Holders the balance of the Escrow SharesShareholders Representative. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of Promptly upon receipt of the a Representative Distribution Notice, release Escrow Agent shall provide a copy of such notice to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred Buyer. The following sets forth actions to be taken by the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either Agent in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).following situations:
Appears in 1 contract
Samples: Merger Agreement (Quanex Corp)
Contested Claims. In the event that Parent or the Indemnification Stockholder ---------------- Representative Representative, as the case may be, gives written notice to Cambridge other and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") --------------- within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Horizon in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Horizon and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement and any disputes regarding an Acceleration Release ("Arbitrable Claims"), ----------------- ) shall be ----------------- settled in accordance with Section 2.3(c) below. Parent and Stockholder Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Stockholder Representative agree that any Arbitrable Claim is between the Parent and Stockholder Representative, the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Stockholder Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Indemnification Escrow Shares or Goals Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common SharesMarket Price. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by Parent or the Indemnification Stockholder Representative, as the case may be, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the an Indemnification Release Date (as defined in Section 3.1 below) or a Goals Escrow Release Date (as defined in Section 3.3 below), the number of Indemnification Escrow Shares or Goals Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Stockholder Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of the final award or decision -------------------------- of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Stockholder Representative); or (iii) receipt of a written notice from the Indemnification Stockholder Representative (a "Representative -------------- Distribution ------------ Notice") attaching a copy of the final award or ----------------------------------- decision of the an arbitrator under ------ paragraph (c) below that no Escrow Adjustments are to be made as a result of such award or the Escrow Adjustments are to be made to a Holder pursuant to an Acceleration Release (the Indemnification Stockholder Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Indemnification Escrow Shares or Goals Escrow Shares specified in the Escrow Adjustments and (b) if the Indemnification Release Date or a Goals Escrow Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Goals Escrow Fund the balance of the Indemnification Escrow SharesShares in accordance with Section 3.1 and 3.2 herein, or release to the Holders that portion of the Goals Escrow Shares which has vested pursuant to the Goals Schedule, on a Pro Rata Basis certified in writing to the Escrow Agent by the Stockholder Representative. If the earliest of the three events described above is (iii) and the Indemnification Release Date or a Goals Escrow Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, subject to Section 12.17 herein, release to the Holders Goals Escrow Fund the balance of the Retained Indemnification Escrow (as defined in Section 3.1)) or release to the Holders that portion of the Retained Goals Escrow (as defined in Section 3.3) which has vested pursuant to the Goals Schedule, in accordance with the Holders' interests thereintherein calculated on a Pro Rata Basis as certified in writing to the Escrow Agent by the Stockholder Representative, provided that if the Indemnification Release Date or a Goals Escrow Release Date has not occurred the Indemnification Escrow Shares and the Goals Escrow Shares shall continue to be held pursuant to the terms of this Agreement, provided however, that, notwithstanding any other provisions in this Section 2.3(b), the Escrow Agent shall release to any applicable Holder that portion of the Goals Escrow Shares as is owing pursuant to an Acceleration Release regardless of whether the Goals Release Date has occurred. If the award or decision of the arbitrator concludes that Indemnification Escrow Shares or Goals Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Indemnification Escrow Shares or Goals Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative Seller gives (and the Escrow Agent receives) written notice to Cambridge and the Custodian contesting all of, or a portion of of, a Notice of Claim to the Buyer and the Escrow Agent (a "Contested Claim") within the thirty (30-day --------------- ) Business Day period provided above, matters that are subject the Escrow Agent shall not release any of the Indemnity Fund and/or Litigation Fund to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement Buyer with respect to the contested portion of such litigation or arbitrationNotice of Claim, while matters that arise between Cambridge on and the one hand Seller and Excell and/or the Holders on Buyer shall attempt to resolve the other hand, including any matter. All disputes regarding performance or nonperformance of a party's obligations the Indemnity Fund and/or Litigation Fund under this Escrow Agreement ("Arbitrable Claims"), ----------------- Section 5(b) shall be settled either by (i) mutual agreement of the Buyer and the Seller (evidenced by appropriate instructions in accordance with Section 2.3(cwriting to the Escrow Agent signed by the Buyer and the Seller specifically instructing the Escrow Agent as to disposition of the Indemnity Fund and/or Litigation Fund) below. Any portion or (ii) by a final judgment, order or decree of a Notice court of Claim that is not contested competent jurisdiction (the time for modification or is subsequently settled appeal therefrom having expired and no action having been taken or perfected, or if any such action or motion to alter, amend, modify or appeal such final judgment, order or decree has been taken and perfected, after final resolution by Cambridge and the Indemnification Representative highest court having jurisdiction thereof), a copy of which judgment, order or decree (collectively, "Settlement Documentation") in either case shall be resolved delivered to the Escrow Agent by the Buyer or the Seller and accompanied by instructions to the effect that such judgment, order or decree is final, that the time for appeal therefrom has expired (without an appeal having been perfected) and that such judgment, order or decree entitles the Seller or the Buyer, as set forth above the case may be, to a specified amount of the Indemnity Fund and/or Litigation Fund. Such instructions, in Section 2.3(a)the case of mutual agreement between the parties, provided that or Settlement Documentation, in the case of a settlement final judgment, order or decree of a court of competent jurisdiction, shall constitute written instructions to the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), Agent to deliver promptly the number of Escrow Shares specified in the Release Notice Indemnity Fund and/or Litigation Fund equal in value to the amount of such settled Contested Claim in accordance with such agreement, judgment, order or as otherwise provided decree. The balance, if any, of property constituting the Indemnity Fund and/or Litigation Fund shall be released promptly in Section 3.1accordance with Article 2 of the Stock Purchase Agreement. The Escrow Agent shall be under no duty to institute or defend any such proceedings, until and none of the earlier of: (i) receipt costs and expenses of such proceedings shall be borne by the Escrow Agent. If the terms of a settlement agreement executed by Cambridge and of a dispute hereunder increase the Indemnification Representative setting forth a resolution duties or liabilities of the Notice of Claim Escrow Agent and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth Agent has not participated in such settlement so as to be bound thereby, then such settlement shall be effective as to the Escrow Adjustments (Cambridge shall at Agent in respect of such increase in its duties or liabilities only upon the same time provide a copy of the Cambridge Distribution Notice Escrow Agent's written assent thereto. Prior to the Indemnification Representative); or (iii) receipt settlement of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made any dispute as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described provided in the preceding sentence is (i) or (iithis Section 5(b)(ii), the Custodian shallEscrow Agent is authorized and directed to retain in its possession, within twenty (20) calendar days of receipt without liability to any party hereto, the Indemnity Fund and/or Litigation Fund; provided, however, that any portion of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above Indemnity Fund and/or Litigation Fund which is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), not contested shall be disbursed in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms provisions of this Agreement. If the award or decision Article 2 of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Stock Purchase Agreement.
Appears in 1 contract
Samples: Escrow Agreement (Caminus Corp)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "“Contested Claim"”) within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Mysticom in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Mysticom and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's ’s obligations under this Escrow Agreement ("“Arbitrable Claims"), ----------------- ”) shall be settled in accordance with Section 2.3(c) below. Parent and Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative on behalf of the Holders, and the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge “Parent Distribution Notice"”) attaching a ----------------------------- copy of the final award or decision of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "“Representative Distribution Notice"”) attaching a copy of the final award or ----------------------------------- decision of the an arbitrator under paragraph (c) below that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares in accordance with their percentage interests as set forth on Schedule A attached hereto and made a part hereof. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' ’ interests thereintherein as certified in writing to the Escrow Agent, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's ’s final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell HT in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell HT and/or the Holders Indemnification Representative on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that PROVIDED THAT in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Distribution NoticePARENT DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative Holder shall at the same time provide a copy of the Representative Holder Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that PROVIDED THAT if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Samples: Escrow Agreement (Lionbridge Technologies Inc /De/)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day --------------- period provided above, (i) matters that are subject to third party claims against Cambridge Parent or Excell Alacrity in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while and (ii) matters that arise between Cambridge Parent on the one hand hand, and Excell Alacrity and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ---------- Claims"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Parent and ------ Indemnification Representative shall certify in writing to the Escrow Agent whether a Contested Claim is an Arbitrable Claim, and is thus subject to Section 2.3(c). The Parent and Indemnification Representative agree that any Arbitrable Claim is between the Parent and Indemnification Representative, the Escrow Agent is not a party to any Arbitrable Claim, and shall have no duty or obligation to monitor or enforce the provisions of Section 2.3(c) hereof, including without limitation any payment of costs pursuant to Section 2.3(c)(iv), or to determine whether a Contested Claim is an Arbitrable Claim. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Average Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested in whole or in part by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of -------------------------- the final award or decision of the an arbitrator under paragraph (c) below and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- ---------------------------------- decision of the an arbitrator under paragraph (c) below that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares in accordance with their percentage interests which shall be certified in writing to the Escrow Agent. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of after receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests thereintherein as certified in writing to the Escrow Agent, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Contested Claims. (a) In the event that the Indemnification ---------------- Shareholders’ Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim or a Parent Demand (a "“Contested Claim"”) within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge or Excell in a litigation or arbitration shall await the final decision, award or settlement 30 calendar days of receipt of such litigation Notice of Claim or arbitrationParent Demand, while matters as applicable, the Shareholders’ Representative and Parent will use their respective good faith efforts to resolve such dispute, provided that arise between Cambridge on if such dispute is not resolved in 20 calendar days, then the one hand and Excell and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- shall Contested Claim will be settled in accordance with Section 2.3(c) 2.3.3 below. Any portion of a Notice of Claim or Parent Demand that is not contested or is subsequently settled by Cambridge and the Indemnification Representative shall will be resolved as set forth above provided in Section 2.3(a), provided that in the case 2.3.1. If notice of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice Contested Claim is received by the Custodian that a Notice of Claim is contested by the Indemnification RepresentativeEscrow Agent, then the Custodian shall Escrow Agent will continue to hold hereunder after what would otherwise be in the Release Date General Escrow Account a portion of the General Escrow Amount (as defined in Section 3.1 below), the number of Escrow Shares “Contested Amount”) equal to the amount that is specified in the Contested Claim assuming that the claim is resolved in favor of Parent. The Contested Amount will not be released on the Release Notice Date, or as otherwise provided for in Section 3.1, and will be retained by the Escrow Agent until such time as one of the conditions included in Section 2.3.2(b) is satisfied.
(b) The Contested Amount will be held until the earlier of: (i) receipt by the Escrow Agent of a settlement agreement executed by Cambridge Parent and the Indemnification Shareholders’ Representative setting forth a resolution of the Notice of Contested Claim and the portion of the General Escrow AdjustmentsAmount, if any, to be delivered to Parent; (ii) receipt by the Escrow Agent of a written notice from Cambridge Parent (a "Cambridge “Parent Distribution Notice"”) attaching a ----------------------------- copy of the arbitrator’s final award award, decision, or decision of supplementary report or finding made in accordance with Section 2.3.3 (the arbitrator “Arbitrator’s Award”), and setting forth the portion of the General Escrow Adjustments Amount to be delivered to Parent (Cambridge shall Parent will at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Shareholders’ Representative); or (iii) receipt by the Escrow Agent of a written notice from the Indemnification Shareholders’ Representative (a "Representative the “Representative’s Distribution Notice"”) attaching a copy of the final award or ----------------------------------- decision Arbitrator’s Award that no portion of the arbitrator that no General Escrow Adjustments are Amount is to be made delivered to Parent as a result of such award (the Indemnification Shareholders’ Representative shall will at the same time provide a copy of the Representative Representative’s Distribution Notice to CambridgeParent). If the earliest to occur of the three events described in the preceding sentence is (i) or (ii), the Custodian shallEscrow Agent will, within twenty (20) 20 calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance portion of the General Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurredAmount, and there are no remaining unresolved Contested Claimsif any, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent as identified in such settlement agreement or the Arbitrator’s Award to which the Parent Distribution Notice relates.
(c) If the Arbitrator’s Award concludes that a portion of the General Escrow Amount is to be released to Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall will specify in the number Arbitrator’s Award the amount of such Damages and Prevailing Party Award (if any) and the corresponding amount of the General Escrow Shares Amount to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or findingParent. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this General Escrow Agreement as a result of a dispute between Parent and the partiesShareholders’ Representative, Parent and the parties hereby Shareholders’ Representative agree to jointly seek to stay such the interpleader action pending the resolution of any arbitration commenced by Parent or the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Shareholders’ Representative.
Appears in 1 contract
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested CONTESTED Claim") within the 30-day --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell Calogic in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell Calogic and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification Representative, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Distribution NoticePARENT DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow SharesShares and the related stock transfer powers. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian Escrow Agent institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Samples: Escrow Agreement (Sipex Corp)
Contested Claims. In the event that the Indemnification ---------------- Representative Holder gives written notice to Cambridge Buyer and the Custodian Escrow Agent contesting all or a portion of a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the 30-day --------------- period provided above, matters relating to such Contested Claim that are subject to third party claims against Cambridge Buyer or Excell the Company in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters relating to such Contested Claim that arise between Cambridge Buyer on the one hand and Excell the Company and/or the Holders Holder on the other hand, including any disputes regarding breach of representations and warranties or performance or nonperformance of a party's obligations under this Escrow the Agreement ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- ) shall be settled in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Buyer and the Indemnification Representative Holder shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If written notice is received by the Custodian Escrow Agent that a Notice of Claim is contested by the Indemnification RepresentativeHolder, then the Custodian Escrow Agent shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Buyer and the Indemnification Representative Holder setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Buyer (a "Cambridge Distribution NoticeBUYER DISTRIBUTION NOTICE") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Buyer shall at the same time provide a copy of the Cambridge Buyer Distribution Notice to the Indemnification RepresentativeHolder); or (iii) receipt of a written notice from the Indemnification Representative Holder (a "Representative Distribution NoticeREPRESENTATIVE DISTRIBUTION NOTICE") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative Holder shall at the same time provide a copy of the Representative Distribution Notice to CambridgeBuyer). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Buyer Distribution Notice, as applicable, (a) release to Cambridge Buyer of that portion of the number of Escrow Shares Fund specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders Holder the balance of the Escrow SharesFund. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian Escrow Agent shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders Holder the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares Fund shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Samples: Escrow Agreement (Teradyne Inc)
Contested Claims. In the event that the Indemnification ---------------- Representative gives written notice to Cambridge Parent and the Custodian contesting all or a portion of a Notice of Claim (a "Contested Claim") within the 30-day period --------------- period provided above, matters that are subject to third party claims against Cambridge Parent or Excell Calogic in a litigation or arbitration shall await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Parent on the one hand and Excell Calogic and/or the Holders on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement ("Arbitrable Claims"), ----------------- ) shall be settled ----------------- in accordance with Section 2.3(c) below. Any portion of a Notice of Claim that is not contested or is subsequently settled by Cambridge Parent and the Indemnification Representative shall be resolved as set forth above in Section 2.3(a), provided that in the case of a settlement the value of Escrow Shares shall equal the Deemed Value Per Cambridge Share Parent Average Closing Price notwithstanding any change in the market value of Cambridge Parent Common Shares. If written notice is received by the Custodian that a Notice of Claim is contested by the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date (as defined in Section 3.1 below), the number of Escrow Shares specified in the Release Notice or as otherwise provided in Section 3.1, until the earlier of: (i) receipt of a settlement agreement executed by Cambridge Parent and the Indemnification Representative setting forth a resolution of the Notice of Claim and the Escrow Adjustments; (ii) receipt of a written notice from Cambridge Parent (a "Cambridge Parent Distribution Notice") attaching a ----------------------------- copy of --------------------------- the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge Parent shall at the same time provide a copy of the Cambridge Parent Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative -------------- Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the ------------------- arbitrator that no Escrow Adjustments are to be made as a result of such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to CambridgeParent). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Parent Distribution Notice, as applicable, (a) release to Cambridge Parent the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge Parent either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge Parent either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Del Arroz Manuel)
Contested Claims. In the event that Company gives Purchaser and the Indemnification ---------------- Representative gives Escrow Agent written notice to Cambridge and the Custodian contesting all all, or a portion of of, a Notice of Claim (a "Contested ClaimCONTESTED CLAIM") within the thirty (30-) day --------------- period provided above, matters that are subject to third party claims brought against Cambridge Purchaser or Excell Company in a litigation or arbitration shall will await the final decision, award or settlement of such litigation or arbitration, while matters that arise between Cambridge Purchaser on the one hand and Excell and/or the Holders Company on the other hand, including any disputes regarding performance or nonperformance of a party's obligations under this Escrow Agreement hand ("Arbitrable ClaimsARBITRABLE CLAIMS"), ----------------- shall will be settled by binding arbitration between Purchaser and Company in accordance with Section 2.3(c) belowthe terms and provisions of this Agreement. Any portion of a the Notice of Claim that is not contested or is subsequently settled by Cambridge and (the Indemnification Representative shall Escrow Agent being entitled to assume that, unless it has received written notice of a Contested Claim within the thirty (30) day period set forth in Section 4(a), Company has no objection to a Notice of Claim) will be resolved as set forth above in Section 2.3(a4(a). The final decision of the arbitrator (such arbitrator to be appointed pursuant to the provisions of Section 4(b)(iii) of this Agreement) will be furnished to the Escrow Agent, provided that Company and Purchaser in writing and will constitute a conclusive determination of the case of a settlement issue in question, binding upon the value of Company and Purchaser. After the Escrow Shares shall equal the Deemed Value Per Cambridge Share notwithstanding any change in the market value of Cambridge Common Shares. If Agent has received written notice is received by the Custodian that contesting a Notice of Claim is contested by within the Indemnification Representative, then the Custodian shall hold hereunder after what would otherwise be the Release Date thirty (as defined in Section 3.1 below)30) day period set forth above, the number of Escrow Agent will set aside and continue to hold in the Escrow Account Escrow Shares specified in having a value (determined pursuant to Section 4(c) hereof) sufficient to cover the amount of such Claim (notwithstanding the expiration of the Escrow Release Notice or as otherwise provided in Section 3.1, Date) until the earlier of: (i) receipt execution of a settlement agreement executed by Cambridge Purchaser and the Indemnification Representative Company setting forth a resolution of the Notice of Claim and the Escrow Adjustments; Claim, or (ii) receipt of a written notice from Cambridge (a "Cambridge Distribution Notice") attaching a ----------------------------- copy of the final award or decision of the arbitrator and setting forth the Escrow Adjustments (Cambridge shall at the same time provide a copy of the Cambridge Distribution Notice to the Indemnification Representative); or (iii) receipt of a written notice from the Indemnification Representative (a "Representative Distribution Notice") attaching a copy of the final award or ----------------------------------- decision of the arbitrator that no Escrow Adjustments are to be made as a result of regarding such award (the Indemnification Representative shall at the same time provide a copy of the Representative Distribution Notice to Cambridge). If the earliest of the three events described in the preceding sentence is (i) or (ii), the Custodian shall, within twenty (20) calendar days of receipt of the settlement agreement or the Cambridge Distribution Notice, as applicable, (a) release to Cambridge the number of Escrow Shares specified in the Escrow Adjustments and (b) if the Release Date has occurred, and there are no remaining unresolved Contested Claims, release to the Holders the balance of the Escrow Shares. If the earliest of the three events described above is (iii) and the Release Date has occurred, and there are no remaining unresolved Contested Claims, the Custodian shall, within twenty (20) calendar days of receipt of the Representative Distribution Notice, release to the Holders the Retained Escrow (as defined in Section 3.1), in accordance with the Holders' interests therein, provided that if the Release Date has not occurred the Escrow Shares shall continue to be held pursuant to the terms of this Agreement. If the award or decision of the arbitrator concludes that Escrow Shares are to be released to Cambridge either in satisfaction of Damages or as Prevailing Party Awards, the arbitrator shall specify the number of Escrow Shares to be so released to Cambridge either in the arbitrator's final award or decision or a supplementary report or finding. In the event that the Custodian institutes an action for interpleader in accordance with Section 4.6 of this Escrow Agreement as a result of a dispute between the parties, the parties hereby agree to jointly seek to stay such interpleader action pending the resolution of any arbitration commenced by the parties or any dispute pursuant to this Section 2.3(b) and Section 2.3(c)Claim.
Appears in 1 contract
