Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows: (a) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"), the Escrow Agent shall deliver to Parent that portion of the Escrow Fund equal in amount to the Claim Amount as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate. (b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate. (c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate. (d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Aristotle Corp)
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow FundSection 2.01 Claim, Objection and Resolution Certificates. --------------------------------------------
(a) The Escrow Agent shall distribute to each of the Digital Investor Indemnitors the portion of the Escrow Fund in the Account held for such Digital Investor Indemnitor, on the sixth day after the "Digital Escrow Termination Date" (as follows:hereinafter defined) (subject to delays in delivering stock certificates not caused by the Escrow Agent), unless the Escrow Agent has ------ received during the period commencing on the Digital Escrow Termination Date and ending at 5:00 pm, New York City Time on the date which is five (5) business days following the Digital Escrow Termination Date, a certificate signed by the Secretary of Tritel (i) stating that Tritel has provided the Digital Investor Indemnitors with notice pursuant to Section 2.03(b) of the Settlement Agreement, and (ii) setting forth the dollar amount to which Tritel claims Tritel is entitled (a "Claim Certificate"). As used herein, the "Digital Escrow ----------------- Termination Date" shall mean the earlier to occur of (x) the date the Digital Investor Indemnitors and Tritel definitively agree in writing that all the matters related to the Digital Indemnity Obligation have been dismissed, settled or otherwise finally disposed of; or (y) October 15, 2001.
(ab) Upon its If Tritel has timely provided a Claim Certificate, on the eleventh business day following the Escrow Agent's receipt of a certificate executed such Claim Certificate (subject to delays in delivering stock certificates not caused by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"Escrow Agent), the Escrow Agent shall deliver (i) distribute to Parent that portion of the Escrow Fund equal in amount to the Claim Amount as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts Tritel from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts deducting from the Escrow Fund shall be deemed to have been taken from Account of each Digital Investor Indemnitor such Digital Investor Indemnitor's pro rata share of such distribution (x) the amounts in such Escrow Fund in proportion to each Stockholders percentage interest dollar amount set forth in the Escrow Fund based on Schedule I attached hereto. ----------Claim Certificate, or, in the event that an Account does not contain sufficient cash, (y) the number of Escrowed Shares which if sold at the Market Price (as hereinafter defined), would equal the dollar amount set forth in the Claim Certificate after deducting the cost of commissions for such sale, rounded up to the nearest whole TeleCorp
Appears in 1 contract
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow FundSection 2.01 Claim, Objection and Resolution Certificates. --------------------------------------------
(a) The Escrow Agent shall distribute to each of the Digital Investor Indemnitors the portion of the Escrow Fund in the Account held for such Digital Investor Indemnitor, on the sixth day after the "Digital Escrow Termination Date" (as follows:hereinafter defined) (subject to delays in delivering stock certificates not caused by the Escrow Agent), unless the Escrow Agent ------ has received during the period commencing on the Digital Escrow Termination Date and ending at 5:00 pm, New York City Time on the date which is five (5) business days following the Digital Escrow Termination Date, a certificate signed by the Secretary of Tritel (i) stating that Tritel has provided the Digital Investor Indemnitors with notice pursuant to Section 2.03(b) of the Settlement Agreement, and (ii) setting forth the dollar amount to which Tritel claims Tritel is entitled (a "Claim Certificate"). As used herein, the "Digital Escrow ----------------- Termination Date" shall mean the earlier to occur of (x) the date the Digital Investor Indemnitors and Tritel definitively agree in writing that all the matters related to the Digital Indemnity Obligation have been dismissed, settled or otherwise finally disposed of; or (y) October 15, 2001.
(ab) Upon its If Tritel has timely provided a Claim Certificate, on the eleventh business day following the Escrow Agent's receipt of a certificate executed such Claim Certificate (subject to delays in delivering stock certificates not caused by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"Escrow Agent), the Escrow Agent shall deliver (i) distribute to Parent that portion of Tritel from the Escrow Fund by deducting from the Account of each Digital Investor Indemnitor such Digital Investor Indemnitor's pro rata share of such distribution (x) the dollar amount set forth in the Claim Certificate, or, in the event that an Account does not contain sufficient cash, (y) the number of Escrowed Shares which if sold at the Market Price (as hereinafter defined), would equal the dollar amount set forth in amount the Claim Certificate after deducting the cost of commissions for such sale, rounded up to the Claim Amount as indicated nearest whole TeleCorp Share, and (ii) shall distribute to each Digital Investor Indemnitor the remaining balance in said certificatethe Account of such Digital Investor Indemnitor; provided, andhowever, if that -------- ------- notwithstanding the Claim Amount indicated in such certificate is less than $162,500foregoing, the Escrow Agent shall deliver not make such distribution to Tritel pursuant to (i) above from the Account of any Digital Investor Indemnitor which on or prior to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) tenth business days, after day following the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, Claim Certificate provides the Escrow Agent shall deliver with a certificate stating that such Digital Investor Indemnitor has provided Tritel with notice pursuant to the Stockholders an amount Section 2.03(c) of the Escrow Fund equal to $162,500Settlement Agreement (an "Objection Certificate"). For purposes of this Section 2.01, as indicated in said certificate. Distributions "Market Price" --------------------- means the average of the Escrow Fund pursuant to this Section 5(b) by closing prices for TeleCorp Shares for the Escrow Agent shall be made in accordance with ten consecutive trading days commencing 15 days before the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificatedate on which payment is made.
(c) Upon its receipt Notwithstanding any provision in this Escrow Agreement to the contrary, upon the Escrow Agent's receipt, at any time, of a certificate executed signed by all of the Interested other Parties certifying therein hereto (i) stating that all indemnifiable matters pursuant to the Surviving Corporation has received License Purchase Agreement have been resolved, and (ii) setting forth instructions for the PerkinElmer Payment distribution of the Escrow Fund (the a "PerkinElmer Resolution ---------- Certificate"), the Escrow Agent shall deliver to promptly distribute the Stockholders that Escrow Fund in ----------- accordance with the instructions contained in such certificate and this Escrow Agreement shall terminate.
(d) In the event any Digital Investor Indemnitor timely provides an Objection Certificate, the Escrow Agent shall retain in escrow the portion of the Escrow Fund equal in amount to the PerkinElmer PaymentAccount of such Digital Investor Indemnitor(s) until the Escrow Agent receives (i) a Resolution Certificate, up to a maximum of $82,525, as indicated in said certificate. Distributions or (ii) instructions for the distribution of the Escrow Fund from a three member panel certifying that it is the board of arbitration that has been selected pursuant to this Section 5(c) by ARTICLE IV of the Settlement Agreement, in which case the Escrow Agent shall be made in accordance promptly comply with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificatesuch instructions.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------
Appears in 1 contract
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow FundSection 2.01 Claim, Objection and Resolution Certificates. --------------------------------------------
(a) The Escrow Agent shall distribute to each of the Airwave Investor Indemnitors the portion of the Escrow Fund in the Account held for such Airwave Investor Indemnitor, on the sixth day after the "Airwave Escrow Termination Date" (as follows:hereinafter defined) (subject to delays in delivering stock certificates not caused by the Escrow Agent), unless the Escrow Agent has ------ received during the period commencing on the Airwave Escrow Termination Date and ending at 5:00 pm, New York City Time on the date which is five (5) business days following the Airwave Escrow Termination Date, a certificate signed by the Secretary of Tritel (i) stating that Tritel has provided the Airwave Investor Indemnitors with notice pursuant to Section 2.02(a) of the Settlement Agreement, and (ii) setting forth the dollar amount to which Tritel claims Tritel is entitled (a "Claim Certificate"). As used herein, the "Airwave Escrow ----------------- Termination Date" shall mean the earlier to occur of (x) the date the Airwave Investor Indemnitors and Tritel definitively agree in writing that all the matters related to the Airwave Indemnity Obligation have been dismissed, settled or otherwise finally disposed of; or (y) October 15, 2001.
(ab) Upon its If Tritel has timely provided a Claim Certificate, on the eleventh business day following the Escrow Agent's receipt of a certificate executed such Claim Certificate (subject to delays in delivering stock certificates not caused by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"Escrow Agent), the Escrow Agent shall deliver (i) distribute to Parent that portion of Tritel from the Escrow Fund by deducting from the Account of each Airwave Investor Indemnitor such Airwave Investor Indemnitor's pro rata share of such distribution (x) the dollar amount set forth in the Claim Certificate, or, in the event that an Account does not contain sufficient cash, (y) the number of Escrowed Shares which if sold at the "Market Price" (as hereinafter defined), would equal the dollar amount set forth in amount the Claim Certificate after deducting the cost of commissions for such sale, rounded up to the Claim Amount as indicated nearest whole TeleCorp Share, and (ii) shall distribute to each Airwave Investor Indemnitor the remaining balance in said certificatethe Account of such Airwave Investor Indemnitor; provided, andhowever, if that notwithstanding the Claim Amount indicated in -------- -------- shall not make such certificate is less than $162,500, distribution to Tritel pursuant to (i) above from the Escrow Agent shall deliver Account of any Airwave Investor Indemnitor which on or prior to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) tenth business days, after day following the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, Claim Certificate provides the Escrow Agent shall deliver with a certificate stating that such Airwave Investor Indemnitor has provided Tritel with notice pursuant to the Stockholders an amount Section 2.02(b) of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten Settlement Agreement (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the an "PerkinElmer Objection Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions For purposes of this Section 5--------------------- 2.01, such amounts from "Market Price" means the Escrow Fund shall be deemed to have been taken from average of the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in closing prices for TeleCorp Shares for the Escrow Fund based ten consecutive trading days commencing 15 days before the date on Schedule I attached hereto. ----------which payment is made.
Appears in 1 contract
Distribution of the Escrow Fund. The (a) Buyer shall provide the Escrow Agent shall continue and the Shareholders' Representative with written notice (each, a "Claims Notice") of any claim for ------------- indemnification for Losses incurred by any of the Buyer Parties (each, a "Buyer ----- Claim") that Buyer seeks to ------------------------------- hold the Escrow Fund recover, in its possession until authorized hereunder to distribute whole or in part, from the Escrow Fund. The Escrow Agent shall distribute , ----- specifying the Escrow Fund amount of Losses and including (i) a brief summary of the basis for such Buyer Claim and (ii) an Allocation and Valuation Statement (as follows:defined below).
(ai) Upon its receipt If within thirty (30) calendar days of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"), the Escrow Agent shall deliver to Parent that portion of the Escrow Fund equal in amount to the Claim Amount as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificateany such Claims Notice (the "Objection Period") the Escrow Agent has ---------------- not received written notice from the Shareholders' Representative objecting to such Buyer Claim (an "Objection Notice"), and provided the Escrow Agent has not ---------------- received an order of an arbitration panel pursuant to the Agreement of Reorganization ("Arbitration Panel") prohibiting distribution of the Escrow ----------------- Fund, the Shareholders' Representative will be deemed to have agreed to such Claims Notice (and the Buyer Claim set forth therein), and the Escrow Agent shall make a distribution out of the Escrow Fund in payment of such Buyer Claim pursuant to the terms of Section 2(b)(iv) below.
(bii) Upon its receipt of If the Escrow Agent does receive such an Objection Notice with respect to a certificate executed by all of Claims Notice within the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statementsrelated Objection Period, the Escrow Agent shall deliver to the Stockholders an amount make no distribution out of the Escrow Fund equal in payment of such Claims Notice unless and until:
(A) the Escrow Agent receives (I) written notice from Buyer or the Shareholders' Representative stating that such Buyer Claim has been submitted to $162,500and decided in favor of Buyer by an Arbitration Panel in a final, non-appealable award or decision and that a copy of the final award or judgment issued by such Arbitration Panel in favor of Buyer (specifying the amount of recovery) is attached thereto, accompanied by (II) a copy of such final, non-appealable award or decision and an Allocation and Valuation Statement (as indicated defined below) from Buyer with respect thereto; or
(B) the Escrow Agent receives joint written notice from each of Buyer and the Shareholders' Representative, confirming that such Buyer Claim has been settled by mutual written agreement of Buyer and the Shareholders' Representative, specifying the amount of recovery for Buyer agreed to therein, containing (or accompanied by) an Allocation and Value Statement (as defined below) from Buyer in said certificate. Distributions respect thereof, and directing the Escrow Agent to make a distribution to Buyer from the Escrow Fund in payment of the amount specified therein pursuant to the terms of Section 2(b)(iv) below.
(iii) Prior to any payment from the Escrow Fund, Buyer shall provide the Escrow Agent with the written calculations (an "Allocation and -------------- Valuation Statement") setting forth the amount of shares to be delivered ------------------- from each Account in respect of the related Buyer Claim (giving effect to the limitations set forth in the Agreement of Reorganization) and valuing a share of Buyer Common at the Genesys Stock Price (as defined in the Agreement of Reorganization, and herein the "Share Value") as determined ----------- pursuant to Section 6.1(d) of the Agreement of Reorganization, upon which the Escrow Agent shall be entitled to rely conclusively without further inquiry of any kind; provided, however, that such amount of shares for each -------- ------- Account shall be rounded down to the nearest whole number of shares, such that no fractional shares shall be delivered on account of any Buyer Claim; and further provided that each such Allocation and Valuation Statement shall be subject to the terms of Section 2(c) below.
(iv) Any distribution made from the Escrow Fund pursuant to this Section 5(b2(b)(i) or Section 2(b)(ii) shall be made by the Escrow Agent shall by delivering to Buyer's transfer agent, Boston Equiserve (the "Transfer -------- Agent") such of the Deposited Certificates (and/or by delivering to Buyer ----- any Stock Dividends or Fractional Share Cash) then held in the related Account or Accounts from which such payment is to be made made, as necessary to make payment of the related Buyer Claim (according to the related Claims Notice, Arbitration Panel award or judgment, or agreement, as the case may be, and in accordance with the distribution instructions contained Share Value as set forth in said certificate the related Allocation and shall be made promptly, and in any event within ten (10) business days, after Valuation Statement received by the Escrow Agent), together with the related stock transfer powers. Upon receipt thereof, if any positive balance of Buyer Common remains after deducting from the Deposited Certificates so surrendered the appropriate amount of Buyer Common (in accordance with the terms of this Section 2(b) and Section 2(c) below), Buyer shall, or shall cause its Transfer Agent to, issue and return promptly to the Escrow Agent certificates ("Returned Certificates") of --------------------- Buyer Common representing such remaining balance (each such Returned Certificate to be registered in the name of the registered owner of the surrendered Deposited Certificate to which it corresponds) pursuit to Section 2(d) below; and in the event that such reduction and allocation would result in any Fractional Shares, Buyer shall promptly pay to the Escrow Agent the appropriate amount of Fractional Share Cash pursuant to Section 2(e) below, for deposit into the appropriate Shareholder's receipt of said certificateAccount.
(c) Any distribution of shares of Buyer Common to satisfy a Buyer Claim pursuant to Section 2(b) hereof shall be made from the respective Accounts of the Shareholders in proportion to each Shareholder's pro rata portion of the Buyer Common originally deposited in the Escrow Fund.
(d) In order that the Escrow Agent may distribute the shares of Buyer Common from the Escrow Fund as provided in this Agreement, Buyer agrees to cause the Transfer Agent to deliver to the Escrow Agent upon surrender of a Deposited Certificate then held by the Escrow Agent (i) a new certificate or certificates representing the shares of Buyer Common to be distributed hereunder, issued in the name of the distributee and (ii) if necessary, new certificates representing shares of Buyer Common issued in the name of the appropriate Shareholders to be retained by the Escrow Agent as part of the Escrow Fund. The Shareholders' Representative shall, from time to time, execute and deliver such instruments of transfer, stock powers and instructions to the Escrow Agent as may be reasonably requested to give effect to the provisions of this Agreement.
(e) In any instance in which a requested division (whether by reduction, transfer or exchange) of Deposited Certificates would produce or result in fractional shares of Buyer Common, cash will be paid by Buyer in lieu of fractions of Buyer Common in an amount equal to the product of such fraction multiplied by the applicable Share Value (as reflected in the applicable Allocation and Valuation Statement). Upon receipt by the Escrow Agent of any such cash ("Fractional Share Cash"), such amounts shall be credited by the --------------------- Escrow Agent to, and held in, such Shareholder's Account. The Escrow Agent shall have no obligation to invest (or otherwise pay interest on), or otherwise segregate from its other assets, any such cash allocated to any Account from time to time.
(f) If and to the extent any Stock Dividends in the nature of any securities or other property other than Buyer Common (collectively, "Non-Common ---------- Stock Dividends") is delivered to and held by the Escrow Agent hereunder, --------------- valuation of such Non-Common Stock Dividends, for purposes of any release pursuant to Section 2(b) or Section 2(c) hereof, shall be determined pursuant to such method as is instructed to the Escrow Agent by mutual written instruction of Buyer and the Shareholders' Representative; and absent its timely receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate")such instruction, the Escrow Agent shall deliver have no obligation to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund value or release any such Non-Common Stock Dividends pursuant to this Section 5(c2(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10or Section 2(c) business days, after the Escrow Agent's receipt of the PerkinElmer Certificatehereof.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Genesys Telecommunications Laboratories Inc)
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold No later than five (5) days following the Escrow Fund in its possession until authorized hereunder to distribute date which is one hundred and twenty (120) days following the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 Closing Date (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"“Termination Date”), the Escrow Agent shall deliver pay and distribute to Parent that portion Seller, subject to the remaining terms of this Section 5(b), all of the Escrow Fund equal in amount (including all interest earned thereon) pursuant to wire instructions provided by Seller. Notwithstanding the Claim Amount as indicated in said certificate, andforegoing, if the Claim Amount indicated in such certificate is less than $162,500, Buyer has previously delivered to the Escrow Agent shall deliver to the Stockholders an amount a Project Claim Notice and no disbursement of the Escrow Fund equal was made prior to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made Termination Date in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund such Project Claim Notice pursuant to this Section 5(b5(a)(i) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"or 5(a)(ii), the Escrow Agent shall deliver to the Stockholders that portion of retain in the Escrow Fund after the Termination Date an amount equal in amount to the PerkinElmer Payment, up to a maximum amount of $82,525, as indicated Project Claimed Adjustment covered by such Project Claim Notice. Any funds so retained in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent escrow shall be made disbursed only in accordance with the distribution instructions contained terms of Sections 5(a)(i) or 5(a)(iii) hereof. Notwithstanding the foregoing, in said certificate the event that Seller delivers a Project Objection Notice and Buyer fails to deliver a notice to the Arbitrator requesting the commencement of arbitration proceedings (the “Commencement Notice”) within fourteen (14) days following the termination of the fourteen (14) day period described in Section 5(a) hereof, Seller shall be made promptly, and in any event within ten (10) business days, after so notify the Escrow Agent's receipt Agent (“Notice of Failure to Submit”) who shall deliver a copy of the PerkinElmer Certificate.
Notice of Failure to Submit to Buyer. Should Buyer fail to execute and deliver to the Escrow Agent within three (d3) If a portion days of delivery of the Escrow Fund is copy of the Notice of Failure to be Submit, an affidavit stating that it has delivered to the Stockholders as provided Arbitrator the Commencement Notice within the fourteen (14) day period described in this Section 5the preceding sentence, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, pay and distribute to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of Seller the Escrow Fund (based on his proportionate including all interest in the Escrow Fund as set forth on Schedule I attached heretoearned thereon). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent , pursuant to any provisions of this Section 5wire instructions provided by Seller, such amounts from the Escrow Fund shall be deemed to have as if no Project Claim Notice had been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------filed.
Appears in 1 contract
Distribution of the Escrow Fund. The (a) Escrow Agent shall continue is authorized by all of the parties hereto to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow Fund. The Escrow Agent shall distribute disburse the Escrow Fund as follows:
(ai) Upon its receipt in accordance with the instructions set forth in any written letter of a certificate direction executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 both Buyer and Seller;
(the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"), the ii) Escrow Agent shall deliver disburse to Parent that Buyer all or any portion of the Escrow Fund equal in amount if so instructed by Seller pursuant to the Claim Amount as indicated in said certificatea written letter of direction executed by Seller, and, if the Claim Amount indicated in such certificate is less than $162,500, the a copy of which shall be delivered by Seller to Buyer;
(iii) Escrow Agent shall deliver disburse to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in Seller all or any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up if so instructed by Buyer pursuant to a maximum written letter of $82,525direction executed by Buyer, as indicated in said certificate. Distributions a copy of which shall be delivered by Buyer to Seller;
(iv) Escrow Agent shall disburse to Buyer on the twentieth (20th) Business Day following Escrow Agent’s receipt from Buyer of a copy of a written notice which certifies that such notice constitutes a notice of claim or demand which has given rise to, or is expected to give rise to, a claim by Buyer for indemnification under the Purchase Agreement delivered by Buyer pursuant to Section 9.4.1 of the Purchase Agreement along with a written request from Buyer addressed to both Escrow Agent and Seller for such payment from the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly(a “Release Request”), and in all or any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated is specified in the applicable certificate received by the such Release Request, unless prior to such twentieth (20th) Business Day Escrow Agent, Agent receives a written notice from Seller requesting that Escrow Agent not make all or a portion of such disbursement to Buyer because Seller is in good faith disputing such claim or such portion thereof (in which portion case Escrow Agent shall equal retain such Stockholder's disputed portion of the Escrow Fund until such date as Buyer and Seller shall have resolved any dispute related to any disputed portion of any claim to which such Release Request applies and, upon written notice thereof from Buyer and Seller, Escrow Agent shall distribute to Buyer the amount to which such resolution applies); or
(based on his proportionate interest in v) Escrow Agent shall disburse the Escrow Fund as follows:
1. During the period commencing on the date hereof and ending on the nine (9) month anniversary thereof, Escrow Agent shall disburse to Seller in accordance with the written instructions of Buyer, an amount equal to the Inventory Value of the Acquired Inventory sold, used or consumed and Acquired A/R collected during the immediately preceding calendar quarter, less (x) any amount by which the aggregate Assumed A/P paid by Buyer from and after the date hereof exceeds $685,000, as reflected in the quarterly Post Closing Statement delivered to Seller pursuant to Section 4.3 of the Purchase Agreement, and less (y) the aggregate amount of any claims for which Escrow Agent has received copies of Release Requests which are then pending including any Release Requests or portions thereof subject to dispute under clause (iv) above. All amounts pursuant to subsections (x) and (y) of this paragraph are collectively referred to herein as “Disbursement Deductions.”
2. Promptly on December 12, 2011, Escrow Agent shall release to Buyer the then existing balance of the Escrow Fund, less any Disbursement Deductions, and less any amounts set forth on Schedule I attached heretoin a written notice delivered by Seller to Buyer and Escrow Agent (a “Seller Objection Notice”) which Seller Objection Notice shall state that Seller challenges the amounts described in one or more of the Post-Closing Statements. The Seller Objection Notice shall specify the amount that Seller asserts is payable to Seller pursuant to Section 4.3 of the Purchase Agreement and shall describe in reasonable detail the basis for Seller’s objection.
3. Any Disbursement Deductions or other funds continuing to be held by Escrow Agent following December 12, 2011, shall only be disposed of as otherwise provided in clauses (i) through (iv) of this Section 5(a). In the ---------- amounts .
(b) Copies of all notices or other documents received by Escrow Agent from Seller or Buyer pursuant to this Agreement shall be delivered by facsimile and overnight next Business Day delivery service to Buyer or Seller, respectively, within two (2) Business Days after receipt thereof by Escrow Agent.
(c) If a dispute arises between Buyer and Seller with respect to the Escrow Fund are retained by Fund, the Escrow Agent or distributed may (but without obligation to Parent pursuant to do so) institute an appropriate interpleader action in any provisions court of this Section 5, such amounts from the competent jurisdiction. The Escrow Fund shall be deemed to have been taken from deposited with the amounts court in which such interpleader action is filed and, in such event, Escrow Fund Agent shall be relieved of and discharged from any and all obligations and liabilities under and pursuant to this Agreement with respect to that portion of the Escrow Fund.
(d) Upon the written request of any party hereto, Escrow Agent shall promptly mail to the requesting party copies of any or all bank statements received by Escrow Agent with respect to the Escrow Fund.
(e) Escrow Agent, in proportion the exercise of its sole discretion, may at any time, with thirty (30) days prior written notice to each Stockholders percentage interest in Buyer and Seller, resign as Escrow Agent hereunder. If by the thirtieth (30th) day after the giving of such notice a successor Escrow Agent has been appointed and accepted appointment, Escrow Agent shall deliver the Escrow Fund based on Schedule I attached heretoto such successor. ----------If by the thirtieth (30th) day after the giving of such notice no successor has been appointed and accepted appointment, Escrow Agent may institute an appropriate interpleader action, and deposit the Escrow Fund with the court in which such interpleader action is filed. In either of the foregoing events (i.e., the institution of the interpleader action or delivery of the Escrow Fund to a successor Escrow Agent), Escrow Agent shall be relieved of and discharged from any and all obligations and liabilities under and pursuant to this Agreement.
Appears in 1 contract
Samples: Escrow Agreement (Argan Inc)
Distribution of the Escrow Fund. The Subject to the terms of this Escrow Agent shall continue to ------------------------------- hold Agreement: (i) ninety (90) days after the Escrow Fund in its possession until authorized hereunder to distribute Closing and at the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt end of a certificate executed by all each of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 next eleven (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 11) ninety (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 90) day periods thereafter (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"an “Escrowed Cash Distribution Date”), the Escrow Agent shall deliver distribute to Parent that portion each Eligible Target Shareholder the product (1) one twelfth (1/12), (2) the relevant Target Shareholder’s Total Percentage (as set forth on Schedule 3) and (3) the Total Deferred Cash Merger Consideration, (ii) on each anniversary of the Escrow Fund equal in amount to the Claim Amount as indicated in said certificateClosing Date (up to, and, if the Claim Amount indicated in such certificate is less than $162,500and including, the Escrow Agent shall deliver to the Stockholders an amount fifth (5th) anniversary of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"Closing Date), the Escrow Agent shall deliver distribute to each Eligible Target Shareholder, a number of shares of Escrowed TIGroup Common Stock equal to the Stockholders product (1) fifteen percent (15%), (2) the number of shares of Escrowed TIGroup Common Stock that are allocable to such Target Shareholder (as set forth on Schedule 3); provided, however, that (x) the Escrow Fund shall serve as the first source (but shall not be the exclusive source) of funds for any indemnity obligations of the Target Shareholders to any Buyer Indemnified Party under Section 5.9 and/or Article VIII of the Merger Agreement, (y) upon receiving notice from Parent that a Target Shareholder is no longer an Eligible Target Shareholder, the Escrow Agent shall distribute to Parent any portion of the Escrow Fund equal that is allocable (as of the relevant determination date) to such Target Shareholder, and (z) any amounts remaining in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(cafter the fifth (5th) by anniversary of the Escrow Agent Closing Date shall be made disbursed in accordance with the distribution instructions contained in said certificate and shall be made promptlyterms of this Escrow Agreement, and in any event within ten (10iii) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5on each Escrowed Cash Distribution Date, the Escrow Agent shall disburse, distribute to Surviving Corporation the accrued interest and other earnings thereon that have accrued in accordance with the disbursement instructions contained in the applicable certificate, respect to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Fund. Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund agent shall be deemed entitled to have been taken from rely on Parent’s prior written notices to determine which Target Shareholders are Eligible Target Shareholders at the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------time of a distribution hereunder.
Appears in 1 contract
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"), the Escrow Agent shall deliver to Parent that portion of the Escrow Fund equal in amount On or prior to the Claim Amount as indicated in said certificatedate that is five (5) Business Days after the Expiration Date, and, if Acquiror and the Claim Amount indicated in such certificate is less than $162,500, the Escrow Agent Securityholder Representative shall deliver to the Stockholders an amount of Escrow Agent a joint written instruction to release from the Escrow Fund to the Paying Agent (for further distribution to the Indemnifying Parties) that amount of cash equal to (a) the difference between $162,500 cash then-remaining in the Escrow Fund, less (b) any amount of interest or other income due and payable to Acquiror under the Escrow Agreement but not yet paid (which shall be distributed to Acquiror), less (c) the aggregate amount of cash that Acquiror determines (acting reasonably) is necessary to serve as security for pending claims specified in Claim Notices duly delivered prior to the end of the Expiration Date that have not been resolved prior to the Expiration Date (the “Escrow Release Amount”), and the Claim Amount, as indicated in said certificate. Distributions Paying Agent shall pay or cause to be paid to the Indemnifying Parties their respective Pro Rata Portion of any cash so released from the Escrow Fund pursuant using the same payment method used to this Section 5(a) by pay the Escrow Agent shall be made Merger Consideration to such Indemnifying Party at the Closing and in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount terms of the Escrow Fund equal to $162,500Agreement, as indicated unless notified in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) writing by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt Securityholder Representative of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver an alternative payment method prior to the Stockholders that portion Expiration Date. Upon the resolution of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If all pending claims for which a portion of the Escrow Fund is to be delivered was withheld and retained in the Escrow Fund, and after any distributions from the Escrow Fund to the Stockholders as provided Indemnified Parties in accordance with this Section 5Article IX, Acquiror and the Securityholder Representative shall deliver to the Escrow Agent a joint written instruction to release from the Escrow Fund to the Paying Agent (for further distribution to the Indemnifying Parties) that amount of cash equal to (x) the cash then-remaining in the Escrow Fund, less (y) any amount of interest or other income due and payable to Acquiror under the Escrow Agreement but not yet paid (which shall disbursebe distributed to Acquiror), and the Paying Agent shall pay or cause to be paid to the Indemnifying Parties their respective Pro Rata Portion of any cash so released from the Escrow Fund using the same payment method used to pay the Merger Consideration to such Indemnifying Party at the Closing and in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion terms of the Escrow Fund as indicated Agreement, unless notified in the applicable certificate received writing by the Escrow Agent, which portion shall equal such Stockholder's portion Securityholder Representative of an alternative payment method prior to the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------Expiration Date.
Appears in 1 contract
Distribution of the Escrow Fund. The (a) From time to time on or before October 15, 2003 (the "Escrow Termination Date"), in the event that a VitalStream Indemnitee shall desire to claim (each, a "Claim") a right to payment of an indemnifiable Loss pursuant to Section 8 of the Purchase Agreement, VitalStream shall, on behalf of such VitalStream Indemnitee, give written notice (each, a "Claims Notice") to Hosting and the Escrow Agent specifying in reasonable detail the nature and dollar amount of such Claim and the Fair Market Value of an Escrow Share as determined on the day immediately prior to the date on which such Claims Notice is sent by VitalStream. VitalStream shall also deliver to the Escrow Agent evidence, satisfactory to the Escrow Agent in its sole discretion, of the date of the receipt by Hosting of the Claims Notice regarding such Claim.
(b) After receipt of a Claims Notice, Hosting may give written notice (each, a "Dispute Notice") to VitalStream and to the Escrow Agent disputing the Claim which is the subject of such Claims Notice or the Fair Market Value set forth in such Claims Notice and setting forth the basis of such dispute. If, at any time prior to the expiration of the 30-day period (the "Dispute Notice Period") following the receipt by Hosting of such Claims Notice, the Escrow Agent receives a Dispute Notice in respect of such Claims Notice, then the Escrow Agent shall continue to ------------------------------- hold not take the action(s) requested in such Claims Notice unless and until the Escrow Fund Agent has received either (i) a Joint Instruction Notice (as defined in its possession until authorized hereunder Section 10(a) hereof) in respect of the requested actions from VitalStream and Hosting acting jointly in accordance with Section 10(a) hereof or (ii) a Notice of Arbitration Decision (as defined in Section 10(b) hereof) in accordance with Section 10(b) hereof from either VitalStream or Hosting.
(c) With respect to distribute each Claims Notice, if no Dispute Notice is received by the Escrow Fund. The Escrow Agent shall distribute prior to the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all expiration of the Interested Parties certifying therein that Dispute Notice Period in respect of such Claims Notice, then the Company hasdollar amount of indemnifiable damages claimed by the VitalStream Indemnitee as set forth in such Claims Notice shall be deemed established for purposes of this Agreement and the Purchase Agreement and, as after the expiration of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount")Dispute Notice Period, the Escrow Agent shall deliver to Parent that portion of release from the Escrow Fund equal in amount to the Claim Amount as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500, the Escrow Agent shall and deliver to the Stockholders an amount VitalStream Indemnitee such number of Escrow Shares from the Escrow Fund equal to the difference between $162,500 and dollar amount of indemnifiable damages claimed in such Claims Notice divided by the Claim Amount, Fair Market Value of an Escrow Share as indicated set forth in said certificate. Distributions such Claims Notice.
(d) As may be necessary pursuant to any release of Escrow Shares from the Escrow Fund pursuant to this Section 5(a) by 4, VitalStream shall provide the Escrow Agent shall with (i) a new certificate registered in the name of the VitalStream Indemnitee representing the aggregate number of shares of Common Stock to be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after released from the Escrow Agent's receipt of said certificate.
Fund and delivered to the VitalStream Indemnitee pursuant to this Section 4 and (bii) Upon its receipt of a new certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated registered in the Effective Time Financial Statements, name of Hosting for deposit into the Escrow Agent shall deliver Fund representing an aggregate number of shares of Common Stock equal to (A) the Stockholders number of shares of Common Stock initially deposited in the Escrow Fund (subject to appropriate adjustment in the event of any stock dividend, stock split, stock combination or other similar recapitalization of VitalStream's stock affecting any class or series of which the Escrow Shares are part) minus (B) an amount of shares of Common Stock equal to the sum of (1) the number of Escrow Shares to be released from the Escrow Fund equal and delivered to $162,500, as indicated the VitalStream Indemnitee in said certificate. Distributions respect of a Claim pursuant to this Section 4 plus (2) the aggregate number of Escrow Shares previously released from the Escrow Fund pursuant to this Section 5(b4, if any (such number of Escrow Shares to be subject to appropriate adjustment in the event of any stock dividend, stock split, stock combination or other similar recapitalization of VitalStream's stock affecting any class or series of which the Escrow Shares are part).
(e) by the The Escrow Agent shall be made in accordance not inquire into or consider whether a Claim complies with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all requirements of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer CertificatePurchase Agreement.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------
Appears in 1 contract
Distribution of the Escrow Fund. The (i) Subject to the following requirements, the Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 11:59 p.m., Pacific time, on the Survival Date (such period, the “Escrow Period”).
(ii) Within three Business Days following the end of the Escrow Period, Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to distribute any Parent Common Stock remaining in the Escrow Fund to the Indemnifying Parties in accordance with their respective Pro Rata Portions following such termination as provided in Section 8.6(b)(iii); provided, however, that the Escrow Fund shall not terminate, and the Escrow Agent shall continue to ------------------------------- hold not disburse any shares of Parent Common Stock from the Escrow Fund with respect to any amount in its possession until authorized hereunder respect of any unsatisfied claims specified in any Claim Certificate delivered prior to distribute any applicable disbursement date or termination date (“Unresolved Claims”) with respect to facts and circumstances existing prior to such disbursement date or termination date or the Survival Date, and any such amount shall not be distributed to the Indemnifying Parties at such time.
(iii) As soon as all Unresolved Claims have been resolved, Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to deliver the remaining portion of the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus not required to satisfy such Unresolved Claims (A) first, to the Securityholder Representative for any Securityholder Representative Expenses; and (B) second, to the Indemnifying Parties. Deliveries of shares of Parent Common Stock out of the Escrow Fund to the Indemnifying Parties pursuant to this Section 8.6 shall be made in proportion to their respective Pro Rata Portions of the remaining amounts in the Escrow Fund, with the amount by which delivered to each Company Securityholder rounded down to the Company's Liabilities exceed nearest share of Parent Common Stock. Notwithstanding anything to the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount")contrary in this Agreement, the Escrow Agent shall deliver be entitled to Parent that portion of the Escrow Fund equal in amount to the Claim Amount as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 deduct and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in withhold from any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest property in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent deliverable pursuant to this Agreement to any provisions Company Securityholder such amounts as are required to be deducted or withheld therefrom under any provision of this Section 5federal, state, local or foreign Tax law or under any applicable legal requirement. To the extent that such amounts are so deducted or withheld and paid to the appropriate Governmental Entity, such amounts from the Escrow Fund shall be deemed treated for all purposes as having been paid to the Person to whom such amounts would otherwise have been taken from paid.
(iv) For purposes of this Agreement, the amounts in such Escrow Fund in proportion to each Stockholders percentage interest amount of shares of Parent Common Stock in the Escrow Fund based on Schedule I attached hereto. ----------to be paid to the Indemnified Parties in respect of any Losses, if any, shall equal the applicable amount of the Losses divided by the Closing Price (rounded down to the nearest whole share).
Appears in 1 contract
Samples: Merger Agreement (Solarcity Corp)
Distribution of the Escrow Fund. (a) The Escrow Agent shall continue is authorized to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow Fund. The Escrow Agent shall disburse or distribute the Escrow Fund as follows, unless otherwise retained in accordance with Section 5(b) below:
(ai) Upon its receipt of a certificate executed by all written instruction of an Authorized Representative of SVU (substantially in the form attached hereto as Exhibit A and a copy of which shall be sent simultaneously to ASC) stating that one or more series of the Interested Parties certifying therein that Existing ASC Notes identified in such instructions have become or been declared due and payable following an event of default under the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount")ASC Indenture, the Escrow Agent shall disburse to the Trustee, for application to the payment of such Existing ASC Notes that have become or been declared due and payable, an amount from the Initial Escrow Amount Subaccount specified in such written instruction to be the amount of the outstanding principal balance of such Existing ASC Notes that have become or been declared due and payable, plus any amount from the Additional Escrow Amount Subaccount specified in such written instruction to be accrued and unpaid interest on such principal balance of such Existing ASC Notes that have become or been declared due and payable;
(ii) Upon receipt of a written instruction of an Authorized Representative of SVU (substantially in the form attached hereto as Exhibit B and a copy of which shall be sent simultaneously to ASC) stating that a demand has been made that SVU make, or that SVU has made, a payment under the SVU Guarantee in respect of the Existing ASC Notes, to which instruction shall be attached a certificate of a Responsible Financial Officer of SVU certifying to ASC that SVU is required to make, or has made, such payment and the amount of the payment, the Escrow Agent shall disburse either to the Trustee, for application to the payment of the Existing ASC Notes or, if the statement indicates that such payment has been made, to SVU, such amounts from the Initial Escrow Amount Subaccount and the Additional Escrow Amount Subaccount as shall be specified in such written instruction (which shall not exceed the aggregate amount in respect of the outstanding principal balance of, accrued interest on and/or other amount in respect of the Existing ASC Notes that SVU is required to pay or has paid); to the extent that any of the amounts required to be paid or that have been paid under the SVU Guarantee represent amounts other than principal, SVU shall instruct the Escrow Agent to disburse such amount first from the Additional Escrow Amount Subaccount to the extent of the Escrow Funds held in such subaccount before disbursing any amount from the Initial Escrow Amount Subaccount;
(iii) Upon receipt of a written instruction from an Authorized Representative of ASC (substantially in the form of Exhibit C and a copy of which shall be sent simultaneously to SVU) stating that the outstanding principal balance of, and all accrued interest on, Existing ASC Notes have been satisfied and discharged in full, have been redeemed or have been repurchased and cancelled the Escrow Agent shall, if it has not received a notice from an Authorized Representative of SVU disputing such instruction within five Business Days after the Escrow Agent’s and SVU’s receipt of such instruction, disburse to ASC an amount of the Initial Escrow Amount held in the Initial Escrow Amount Subaccount equal to the outstanding principal amount of the Existing ASC Notes that were satisfied and discharged, redeemed or repurchased and cancelled and any amount of the Additional Escrow Amount held in the Additional Escrow Amount Subaccount, if any, in excess of the Interest Reserve Amount in respect of the Existing ASC Notes outstanding after such satisfaction and discharge, redemption or repurchase and cancellation; provided, however, that if the Additional Escrow Amount held in the Additional Escrow Amount Subaccount immediately prior to such distribution is less than the Interest Reserve Amount in respect of the Existing ASC Notes outstanding after such redemption or repurchase and cancellation, then a portion of the Initial Escrow Account equal to such deficiency that would otherwise be disbursed to ASC pursuant to this clause (iii) shall instead be deposited into the Additional Escrow Amount Subaccount;
(iv) Upon receipt of a written instruction from an Authorized Representative of ASC (substantially in the form attached hereto as Exhibit D and a copy of which shall be sent simultaneously to SVU), stating that (i) within five Business Days after its receipt of the following disbursements, ASC intends to purchase Existing ASC Notes (whether through tenders, market purchases, private transactions, or otherwise) with the intention to deliver them to Parent the Trustee for cancellation, or to irrevocably deposit funds with the Trustee to redeem Existing ASC Notes, and (ii) after giving effect to the following disbursements and to such purchases and cancellation or redemption, (A) the remaining balance of the Initial Escrow Amount in the Initial Escrow Amount Subaccount will not be not less than the outstanding principal balance of the remaining Existing ASC Notes, and (B) the remaining balance of the Additional Escrow Amount in the Additional Escrow Amount Subaccount will not be less than the Interest Reserve Amount with respect to the outstanding principal balance of the Existing ASC Notes, to which instruction shall be attached a certificate of a Responsible Financial Officer of ASC certifying to SVU that the portion of the Escrow Fund equal in amount to be disbursed shall be used solely to purchase or redeem such Existing ASC Notes and such Existing ASC Notes will substantially concurrently with their purchase or redemption be delivered to the Claim Amount as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500Trustee for cancellation, the Escrow Agent shall deliver disburse to ASC or to the Stockholders account of the seller or tendering holder of such Existing ASC Notes for settlement of the purchase, or to the account of the Trustee in connection with a deposit for redemption, an amount of the Escrow Fund equal to from the difference between $162,500 and Initial Escrow Amount Subaccount and/or the Claim AmountInterest Reserve Subaccount as specified in such written instructions; provided, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptlyhowever, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal disbursed directly to $162,500, as indicated in said certificate. Distributions of the Escrow Fund ASC pursuant to this Section 5(b5(a)(iv) by and not yet used to purchase or redeem Existing ASC Notes or deposited into the Escrow Agent shall be made Account in accordance with the distribution instructions contained in said certificate and following proviso shall be made promptlynot exceed $10,000,000 at any time; provided, and in any event within ten (10) business days, further that if at the expiration of five Business Days after the Escrow Agent's ASC’s receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount disbursed directly to the PerkinElmer Paymentit under this subsection, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder ASC has not utilized such portion of the Escrow Fund as indicated to purchase or redeem Existing ASC Notes such that the condition set forth in clause (ii) above is satisfied, ASC shall deposit into the Escrow Account, by wire transfer of immediately available funds, an amount sufficient to cause such condition to be satisfied.
(v) Upon receipt of a written instruction from an Authorized Representative of SVU (substantially in the applicable certificate received by form attached hereto as Exhibit E and a copy of which shall be sent simultaneously to ASC) or a written instruction from an Authorized Representative of ASC (substantially in the form attached hereto as Exhibit F and a copy of which shall be sent simultaneously to SVU), stating that SVU has been released in full from the SVU Guarantee or that the SVU Guarantee has been terminated, the Escrow Agent, if it has not received a notice from an Authorized Representative of SVU disputing any such instruction from ASC within five Business Days after the Escrow Agent’s and SVU’s receipt of such instruction, shall disburse to ASC the entire amount of the Escrow Fund;
(vi) Upon receipt of a written instruction from an Authorized Representative of ASC (substantially in the form attached hereto as Exhibit G and a copy of which portion shall equal be sent simultaneously to SVU), stating that after giving effect to the following disbursement of Investment Earnings, the remaining balance of the Initial Escrow Amount in the Initial Escrow Amount Subaccount will not be not less than the outstanding principal balance of the Existing ASC Notes, and the remaining balance of the Additional Escrow Amount in the Additional Escrow Amount Subaccount will not be less than the Interest Reserve Amount with respect to the outstanding principal balance of the Existing ASC Notes, the Escrow Agent shall disburse to ASC such Stockholder's amount of Investment Earnings held in the Escrow Account as specified in such instructions; and
(vii) in accordance with a final, non-appealable order, decree or judgment of a court of competent jurisdiction, accompanied by an opinion of counsel to the presenting Party to the effect that the court award, judgment or order is final and that the time for appeal of such court award, judgment or order has expired and no appeal therefrom has been perfected, and such court award, judgment or order is from a court of competent jurisdiction (an “Order”).
(b) Notwithstanding any provision herein to the contrary, it is understood and agreed that should any dispute arise between SVU and ASC hereto in accordance with the provisions of Section 5(a) with respect to the delivery, disbursement and/or ownership or right of possession of all or any portion of the Escrow Fund held by the Escrow Agent hereunder, upon the written notification of such dispute by the disputing party to the Escrow Agent, the Escrow Agent is authorized and directed (based on his proportionate interest i) to retain in the Escrow Agent’s possession without liability of the Escrow Agent, except for its bad faith, gross negligence or willful misconduct, such entirety or portion of the Escrow Fund subject to dispute until such disputes shall have been settled by (A) mutual written agreement of SVU and ASC (a copy of which written agreement shall be provided by such Parties to the Escrow Agent) or (B) an Order, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings, or (ii) if required by any state or Federal court having competent jurisdiction, to deliver the Escrow Fund, and any other property and documents held by the Escrow Agent hereunder, to a court of competent jurisdiction in accordance with the applicable procedure therefor.
(c) SVU and ASC hereby agree to execute and deliver to the Escrow Agent such joint written instructions as shall be necessary to effectuate the disbursement from time to time of all or any portion of the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained specified in this Agreement.
(d) Each disbursement by the Escrow Agent or distributed to Parent pursuant to Section 5(a) shall be made by wire transfer of immediately available funds to an account specified in such instructions or, if to the Trustee, in a separate written direction from an authorized representative of the Trustee.
(e) Any instructions setting forth, claiming, containing, objecting to, or in any provisions way related to the transfer or distribution of the Escrow Fund, must be in writing, executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons signing this Agreement or one of their designated persons as set forth in Annex 1 attached to this Agreement, as such annex may be updated from time to time at the discretion of the appropriate Party (each, an “Authorized Representative”), and delivered to the Escrow Agent (with a copy to the other Party) only by confirmed facsimile on a Business Day only at the fax number set forth in Section 5, such amounts from 11 below. No instruction for or related to the transfer or distribution of the Escrow Fund shall be deemed delivered and effective unless the Escrow Agent actually shall have received it on a Business Day by facsimile only at the fax number set forth in Section 10 and as evidenced by a confirmed transmittal to have the Party’s or Parties’ transmitting fax number and Escrow Agent has been taken able to satisfy any applicable security procedures as may be required hereunder. For the avoidance of doubt, if a facsimile is transmitted to the Escrow Agent for the purposes described in this Section 5 on a day that is not a Business Day, such facsimile will be deemed received for the purposes of this Agreement on the first Business Day thereafter. The Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in transfer or distribution of the Escrow Fund based on Schedule I attached hereto. ----------if delivered to any other fax number.
Appears in 1 contract
Samples: Escrow Agreement (Supervalu Inc)
Distribution of the Escrow Fund. 4.1 The Escrow Agent Fund shall continue to ------------------------------- hold be disbursed by the Escrow Fund in its possession until authorized hereunder to distribute the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all of If during the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount")Escrow Term, the Escrow Agent shall deliver to receives from Parent that portion of the Escrow Fund equal in amount to the a Claim Amount Notice (as indicated in said certificate, and, if the Claim Amount indicated in such certificate is less than $162,500, hereinafter defined) directing the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by disburse all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If or a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5Parent, the Escrow Agent shall disbursepromptly forward a copy of such Claim Notice to the Shareholder Representatives.
(i) If the Escrow Agent has not received from the Shareholder Representatives an Objection Notice (as hereinafter defined) within thirty (30) calendar days following receipt by the Shareholder Representatives of such Claim Notice from the Escrow Agent, the Escrow Agent shall promptly thereafter disburse from the Escrow Fund the amount claimed in accordance with such Claim Notice, and the Shareholder Representatives shall be precluded from asserting objections to such Claim Notice thereafter.
(ii) If the Escrow Agent receives within thirty (30) calendar days following receipt by the Shareholder Representatives of a copy of the Claim Notice, an Objection Notice from the Shareholder Representatives, the Escrow Agent shall refrain from acting upon the disbursement instructions contained direction (except as to the portion, if any, to which the Objection Notice by its terms does not apply) but shall continue to hold an amount equal to the amount claimed in the applicable certificateClaim Notice, together with interest thereon (i) until the Escrow Agent receives notice in accordance with Section 4.1(b) below, or (ii) until such time as Escrow Agent receives a certified copy of a court order or judgment from a court of competent jurisdiction which has become final and non-appealable with respect to each Stockholder such payment of the claim(s) set forth in the Claim Notice, in which case the Escrow Agent shall promptly thereafter disburse all or a portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal accordance with such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto)order or judgment. In the ---------- amounts event Parent fails to respond to the Objection Notice within thirty (30) days of receipt of such Objection Notice, the claims asserted in the Claim Notice will be of no further force or effect, and Parent shall be precluded from asserting such claims thereafter.
(iii) As used herein, "Claim Notice" shall mean a written notice setting forth with reasonable specificity, (i) the Escrow Fund are retained amount and nature of the claim, (ii) the section or sections of the Merger Agreement pursuant to which such claim is being made and (iii) the date on which such claim properly accrued or arose, which notice shall be certified by a duly authorized officer of Parent. As used herein, "Objection Notice" means a written notice objecting to the Escrow Agent or distributed disbursement to Parent pursuant to of the amount, or any provisions of this Section 5portion thereof, such amounts from set forth in a Claim Notice and specifying in reasonable detail the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------reasons therefor.
Appears in 1 contract
Samples: Escrow Agreement (Fidelity National Information Solutions Inc)
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute the Escrow FundSection 2.01 Claim, Objection and Resolution Certificates. --------------------------------------------
(a) The Escrow Agent shall distribute to each of the Airwave Investor Indemnitors the portion of the Escrow Fund in the Account held for such Airwave Investor Indemnitor, on the sixth day after the "Airwave Escrow Termination Date" (as follows:hereinafter defined) (subject to delays in delivering stock certificates not caused by the Escrow Agent), unless the Escrow Agent has ------ received during the period commencing on the Airwave Escrow Termination Date and ending at 5:00 pm, New York City Time on the date which is five (5) business days following the Airwave Escrow Termination Date, a certificate signed by the Secretary of Tritel (i) stating that Tritel has provided the Airwave Investor Indemnitors with notice pursuant to Section 2.02(a) of the Settlement Agreement, and (ii) setting forth the dollar amount to which Tritel claims Tritel is entitled (a "Claim Certificate"). As used herein, the "Airwave Escrow ----------------- Termination Date" shall mean the earlier to occur of (x) the date the Airwave Investor Indemnitors and Tritel definitively agree in writing that all the matters related to the Airwave Indemnity Obligation have been dismissed, settled or otherwise finally disposed of; or (y) October 15, 2001.
(ab) Upon its If Tritel has timely provided a Claim Certificate, on the eleventh business day following the Escrow Agent's receipt of a certificate executed such Claim Certificate (subject to delays in delivering stock certificates not caused by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 (the "Minimum Net Worth"), and/or total Liabilities of more than $400,000 (the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum of the amount by which the Company's Net Worth is less than the Minimum Net Worth, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up to a maximum of $162,500 (the "Claim Amount"Escrow Agent), the Escrow Agent shall deliver (i) distribute to Parent that portion of Tritel from the Escrow Fund by deducting from the Account of each Airwave Investor Indemnitor such Airwave Investor Indemnitor's pro rata share of such distribution (x) the dollar amount set forth in the Claim Certificate, or, in the event that an Account does not contain sufficient cash, (y) the number of Escrowed Shares which if sold at the "Market Price" (as hereinafter defined), would equal the dollar amount set forth in amount the Claim Certificate after deducting the cost of commissions for such sale, rounded up to the Claim Amount as indicated nearest whole TeleCorp Share, and (ii) shall distribute to each Airwave Investor Indemnitor the remaining balance in said certificatethe Account of such Airwave Investor Indemnitor; provided, andhowever, if that notwithstanding the Claim Amount indicated in such certificate is less than $162,500-------- ------- foregoing, the Escrow Agent shall deliver not make such distribution to Tritel pursuant to (i) above from the Account of any Airwave Investor Indemnitor which on or prior to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) tenth business days, after day following the Escrow Agent's receipt of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, Claim Certificate provides the Escrow Agent shall deliver with a certificate stating that such Airwave Investor Indemnitor has provided Tritel with notice pursuant to the Stockholders an amount Section 2.02(b) of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten Settlement Agreement (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the an "PerkinElmer Objection Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions For purposes --------------------- of this Section 52.01, such amounts from "Market Price" means the Escrow Fund shall be deemed to have been taken from average of the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in closing prices for TeleCorp Shares for the Escrow Fund based ten consecutive trading days commencing 15 days before the date on Schedule I attached hereto. ----------which payment is made.
Appears in 1 contract
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute make distributions from the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 If any Buyer Indemnified Person (the "Minimum Net WorthClaiming Person"), and/or total Liabilities ) timely asserts a right of more than $400,000 (indemnity against the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum Company under Article IX of the amount by which the Company's Net Worth is less than the Minimum Net WorthAsset Purchase Agreement, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up Buyer shall execute and deliver to a maximum of $162,500 (the "Claim Amount"), the Escrow Agent shall (with a copy being sent simultaneously to the Company) a written notice to such effect (a "Notice of Claim;" and the right of indemnity asserted in a Notice of Claim being hereinafter referred to as a "Claim") and instruct the Escrow Agent to deliver to Parent that portion of the Escrow Fund the Fair Market Value (as defined in Section 5 hereof) of which shall equal in the amount to of the Claim Amount as indicated in said certificate, and(or, if the amount of the Claim Amount indicated shall be greater than the Fair Market Value of the Escrow Fund, the balance of the Escrow Fund) to such Claiming Person and the following shall apply:
(i) in such certificate is less than $162,500order to be effective hereunder, a Notice of Claim delivered to the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to the difference between $162,500 and the Claim Amount, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(a4(a) by shall (A) set forth the Escrow Agent shall be made in accordance with name of the distribution instructions contained in said certificate Claiming Person, the nature and shall be made promptlydetails of such Claim, and in any event within ten the amount thereof (10or if not ascertainable, a reasonable estimate of the maximum amount thereof) business days, after the Escrow Agent's receipt of said certificate.
and (b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statements, the Escrow Agent shall deliver to the Stockholders an amount of the Escrow Fund equal to $162,500, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent shall deliver to the Stockholders that portion of the Escrow Fund equal in amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt of the PerkinElmer Certificate.
(d) If a portion of the Escrow Fund is to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, on or prior to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion shall equal such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------the
Appears in 1 contract
Samples: Escrow Agreement (Alloy Online Inc)
Distribution of the Escrow Fund. The Escrow Agent shall continue to ------------------------------- hold the Escrow Fund in its possession until authorized hereunder to distribute make distributions from the Escrow Fund. The Escrow Agent shall distribute the Escrow Fund as follows:
(a) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth of less than $400,000 If any Parent Indemnified Person (the "Minimum Net WorthClaiming Person"), and/or total Liabilities ) timely asserts a right of more than $400,000 (indemnity against the "Maximum Liability Amount"), and/or funded debt in excess of $130,000 (the "Maximum Funded Debt"), each as indicated in the Effective Time Financial Statements, and indicating therein the sum Holders under Article VIII of the amount by which the Company's Net Worth is less than the Minimum Net WorthReorganization Agreement, if any, plus the amount by which the Company's Liabilities exceed the Maximum Liability Amount, if any, plus the amount by which the Company's funded debt exceeds the Maximum Funded Debt, if any, up Parent shall execute and deliver to a maximum of $162,500 (the "Claim Amount"), the Escrow Agent shall (with a copy being sent simultaneously to the Holders) a written notice to such effect (a "Notice of Claim"; and the right of indemnity asserted in a Notice of Claim being hereinafter referred to as a "Claim") and instruct the Escrow Agent to deliver to Parent that portion of the Escrow Fund equal in amount to the Fair Market Value (as defined in Section 5 hereof) of the Claim Amount as indicated in said certificate, and(or, if the amount of the Claim Amount indicated shall be greater than the Fair Market Value of the Escrow Fund, the balance of the Escrow Fund) to such Claiming Person; provided, however, the following shall apply:
(i) in order to be effective hereunder, a Notice of Claim delivered to the Escrow Agent pursuant to this Section 4(a) must (A) set forth the name of the Claiming Person, the nature and details of such certificate Claim (to the extent known), and the amount thereof (or if not ascertainable, a reasonable estimate of the maximum amount thereof) and (B) be delivered to Escrow Agent on or prior to the Escrow Agent's close of business on the date that is less than $162,500the first anniversary of the date hereof (or the next succeeding business day, if Escrow Agent is not open for business on such date); and
(ii) if within thirty (30) business days after the Escrow Agent's receipt of any Notice of Claim by a Claiming Person pursuant to this Section 4(a) the Escrow Agent has not received a notification from either of the Holders that the Claim, or the amount thereof, is disputed, the Escrow Agent shall shall, within five (5) days after the expiration of such 30-day period, deliver to the Stockholders an amount Claiming Person that portion of the Escrow Fund equal to the difference between $162,500 and Fair Market Value of the Claim Amountas set forth in such Notice of Claim (or, if the amount of the Claim shall be greater than the Fair Market Value of the entire Escrow Fund as indicated in said certificate. Distributions of such date, the balance of the Escrow Fund pursuant Fund) (the date of any such delivery hereunder or under Section 4(b) being referred to this Section 5(a) by herein as a "Release Date"). If the Holders timely notify the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt writing of said certificate.
(b) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Company has, as of the Effective Time, a Net Worth greater than the Minimum Net Worth, total Liabilities less than the Maximum Liability Amount and funded debt less than the Maximum Funded Debt, each as indicated in the Effective Time Financial Statementssuch dispute, the Escrow Agent shall deliver not be authorized to the Stockholders an amount of the Escrow Fund equal to $162,500deliver, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(b) by the Escrow Agent shall be made in accordance with the distribution instructions contained in said certificate and shall be made promptlynot deliver, and such disputed amount to such Claiming Person until five (5) days after such dispute has been settled as provided in any event within ten (10) business daysSection 12 below, after the Escrow Agent's receipt of said certificate.
(c) Upon its receipt of a certificate executed by all of the Interested Parties certifying therein that the Surviving Corporation has received the PerkinElmer Payment (the "PerkinElmer Certificate"), the Escrow Agent but shall deliver to the Stockholders Claiming Person that portion of the Escrow Fund equal in as represents the undisputed amount to the PerkinElmer Payment, up to a maximum of $82,525, as indicated in said certificate. Distributions of the Escrow Fund pursuant to this Section 5(c) by the Escrow Agent shall be made in accordance Claim, if any. Concurrently with the distribution instructions contained in said certificate and shall be made promptly, and in any event within ten (10) business days, after the Escrow Agent's receipt delivery of the PerkinElmer Certificate.
(d) If a portion notice of the Escrow Fund is dispute to be delivered to the Stockholders as provided in this Section 5, the Escrow Agent shall disburse, in accordance with the disbursement instructions contained in the applicable certificate, to each Stockholder such portion of the Escrow Fund as indicated in the applicable certificate received by the Escrow Agent, which portion the Holders shall equal deliver a copy of such Stockholder's portion of the Escrow Fund (based on his proportionate interest in the Escrow Fund as set forth on Schedule I attached hereto). In the ---------- amounts from the Escrow Fund are retained by the Escrow Agent or distributed notice to Parent pursuant to any provisions of this Section 5, such amounts from the Escrow Fund shall be deemed to have been taken from the amounts in such Escrow Fund in proportion to each Stockholders percentage interest in the Escrow Fund based on Schedule I attached hereto. ----------Parent.
Appears in 1 contract
Samples: Escrow Agreement (Alloy Online Inc)
