Contingent Consideration Escrow Clause Samples
Contingent Consideration Escrow. At Closing, the Buyer shall deposit (the “Contingent Consideration Escrow Deposit”) a number of Consideration Shares equal to US$500,000 divided by the Average Closing Price to the Escrow Agent, which deposit shall be held by the Escrow Agent in a sub-escrow account (the “Contingent Consideration Escrow Sub-Account”) in accordance with the Escrow Agreement, with instructions to the Escrow Agent to deliver them to the Sellers, in the proportions set opposite their respective names in Schedule 1, or to the Buyer, as applicable, in accordance with the following:
(i) On the date that is 45 Business Days after the receipt by Buyer of the audited financial statement from Ernst & Young, LLP (“Ernst & Young”), or the Buyer’s then current auditor, of the combined operations of Buyer and the Company for the fiscal year-ending December 31, 2005 (the “2005 Audit Date”), the Escrow Agent shall release 100% of the Consideration Shares held by the Escrow Agent in the Contingent Consideration Escrow Sub-Account, provided that the Escrow Agent has not received from the Buyer a Buyer Escrow Claim Notice before the 2005 Audit Date.
(ii) If, by contrast, the Escrow Agent receives from the Buyer one or more Buyer Escrow Claim Notices before the 2005 Audit Date, the Escrow Agent (A) shall (1) continue holding in escrow, after the 2005 Audit Date, an amount of the Consideration Shares equal to the total amount of the claims stated in such Buyer Escrow Claim Notices divided by the Average Closing Price, until the Final Resolution of such claims, (2) promptly notify once a year the Sellers’ Agent and the Buyer of such continuous holding, and (B) on the 2005 Audit Date, shall forthwith release and deliver to the Sellers a number of Consideration Shares equal to 100% of the Consideration Shares held by the Escrow Agent in the Contingent Consideration Escrow Sub-Account less an amount equal to the total amount of the claims stated in the Buyer’s Escrow Claim Notices divided by the Average Closing Price, and (C) upon a Final Resolution of any such claim, shall forthwith distribute and deliver to the Sellers or Buyer, as applicable, a number of Consideration Shares still held in the Contingent Consideration Escrow Sub-Account, in accordance with the following:
A. If an outstanding claim stated in such Buyer Escrow Claim Notices is resolved by mutual agreement of Sellers’ Agent and Buyer, then upon receipt of joint written instructions from Sellers’ Agent and Buyer, the Escrow Agent sha...
Contingent Consideration Escrow. (a) At the Closing, Vistana shall issue and deliver to an independent escrow agent (the "Escrow Agent"), pursuant to an Escrow Agreement substantially in the form of attached Exhibit A (the "Escrow Agreement"), 430,814 shares of Vistana Common Stock (the shares of Vistana Common Stock deliverable to the Escrow Agent pursuant to this Section 1.5(a) are hereinafter referred to as the "Contingent Shares"). The Contingent Shares shall be released from the Escrow Agreement to either the Selling Parties or Vistana in accordance with the terms of the Escrow Agreement and the financial, operating and other criteria and the provisions set forth on Schedule 1.5A.
(b) Any Contingent Shares which are released from the Escrow Agreement to the Selling Parties shall be allocated among the Selling Parties as set forth in Schedule 1.5B.
(c) Notwithstanding anything to the contrary contained in this Agreement or the Escrow Agreement, from the shares of Vistana Common Stock otherwise payable hereunder to the Selling Parties pursuant to Section 1.1, Section 1.2 and Section 1.4, at the Closing, (i) Vistana, at the direction of the shareholders of POC and as security for certain obligations of the shareholders of POC hereunder, shall deliver to the Escrow Agent, pursuant to the Escrow Agreement, 103,228 shares of Vistana Common Stock, (ii) Vistana, at the direction of the stockholders of SCI and as security for certain obligations of the stockholders of SCI hereunder, shall deliver to the Escrow Agent, pursuant to the Escrow Agreement, 93,930 shares of Vistana Common Stock, and (iii) Vistana, at the direction of the sole stockholder of DMA and the sole stockholder of SWC and as security for certain obligations of the stockholders of DMA and the stockholders of SWC, shall deliver to the Escrow Agent, pursuant to the Escrow Agreement, 5,236 shares of Vistana Common Stock and 5,236 shares of Vistana Common Stock, respectively (the shares of Vistana Common Stock deliverable to the Escrow Agent pursuant to this Section 1.5(c) are hereinafter referred to as the "Indemnity Shares").
(d) The Indemnity Shares shall be released from the Escrow Agreement in accordance with the terms of the Escrow Agreement and the terms of Article IX hereof.