Distributions from the Escrow Fund. (a) Upon execution and delivery of this Agreement, the Seller and the Purchaser shall deliver to the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies and the Certificate have been delivered to the Escrow Agent pursuant to this Agreement. Furthermore, such notice shall provide that, upon the pricing of the offering of debt contemplated by the Debt Offering Memorandum (the "Debt Offering"), the delivery by the Seller and the lead placement agent of the Joint Notice (as defined below), and the delivery to the Escrow Agent of confirmation of the closing of the Debt Offering provided for in Section 3(b) below, the Escrow Agent will disburse the proceeds of the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund. (b) On or before the Proposed Offering Closing Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C. (c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly as practicable after receipt of the Purchaser's notice pursuant to this Section 3(c), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C. (d) Upon the termination of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent in writing to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt of such notice: (i) liquidate all investments in the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund); and (ii) return the Certificate to the Seller.
Appears in 2 contracts
Samples: Escrow Agreement (Intercel Inc/De), Escrow Agreement (Intercel Inc/De)
Distributions from the Escrow Fund. (a) Upon execution and delivery of this Agreement, the Seller and the Purchaser shall deliver to the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies Escrow Amount and the Certificate have been delivered to the Escrow Agent pursuant to this Agreement. Furthermore, such notice shall provide that, upon the pricing of the offering of debt contemplated by the Debt Offering Memorandum (the "Debt Offering"), the delivery by the Seller and the lead placement agent of the Joint Notice (as defined below), and the delivery to the Escrow Agent of confirmation of the closing of the Debt Offering provided for in Section 3(b) below, the Escrow Agent will disburse the proceeds of the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at At least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund.
(b) On or before the Proposed Offering Closing Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) belowthe next sentence. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April June 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly as practicable after receipt of the Purchaser's notice pursuant to this Section 3(c), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent in writing to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt of such notice: (i) liquidate all investments in the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund); and (ii) return the Certificate to the Seller.
Appears in 2 contracts
Samples: Escrow Agreement (Powertel Inc /De/), Escrow Agreement (Powertel Inc /De/)
Distributions from the Escrow Fund. (a) Upon execution The Escrow Fund shall be in existence immediately following the Effective Time and delivery shall terminate at 5:00 p.m. California time, on the date which is one year following the Closing Date as to all representations, warranties and covenants of this Agreement, the Seller Lyte Optronics and the Purchaser shall deliver Lyte Optronics Principal Stockholders except for those representations related to matters expected to be encountered in the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies and the Certificate have been delivered audit process, as to which the Escrow Agent pursuant to this Agreement. Furthermore, such notice Fund shall provide that, upon terminate on the pricing earlier of (i) one year following the Closing Date or (ii) the date of the offering auditor's report for the audit of debt contemplated by AXT'x xxxancial statements for the Debt Offering Memorandum year ending December 31, 1999, which includes the results of Lyte Optronics (the "Debt OfferingINDEMNIFICATION PERIOD"); provided, that the delivery by Indemnification Period shall not terminate with respect to such amount that is equal to the Seller and the lead placement agent good faith estimate of the Joint Notice (value of any claims made and pending as defined below), and the delivery to the Escrow Agent of confirmation of the closing Indemnification Period by AXT xxxsuant to this Article X until the resolution of the Debt Offering provided for in Section 3(b) belowall such claims; and provided, the Escrow Agent will disburse the proceeds of further, that the Escrow Fund will terminate in full upon final and complete resolution of all claims. Deliveries of Escrow Amounts consisting of AXT Xxxmon Stock to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund.
(b) On or before the Proposed Offering Closing Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly as practicable after receipt of the Purchaser's notice Lyte Optronics Stockholders pursuant to this Section 3(c), liquidate all investments in 10.5(d) shall be made to the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination former holders of the Purchase AgreementLyte Optronics Class A Common Stock, the Seller or the Purchaser shall notify the Escrow Agent Lyte Optronics Class B Common Stock and Lyte Optronics Series A Convertible Preferred Stock in writing proportion to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt their respective original contributions of such notice: (i) liquidate all investments in the Escrow Fund and pay in full AXT Xxxmon Stock to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund); and (ii) return the Certificate . Deliveries of Escrow Amounts consisting of AXT Xxxferred Stock to the SellerLyte Optronics Stockholders pursuant to this Section 10.5(d) shall be made to the former holders of the Lyte Optronics Series B 5% Preferred Stock in proportion to their respective original contributions of AXT Xxxferred Stock to the Escrow Fund. Provided, however, that if any of the shares in escrow are subject to a repurchase right in favor of Lyte Optronics upon termination of services to Lyte Optronics, then such shares shall not be distributed to the applicable shareholder but in lieu thereof shall (to the extent not already repurchased in the event of prior termination of services) be delivered to the appropriate Escrow Agent who is authorized to hold such shares for the benefit of Lyte Optronics in the event of a future termination of services to Lyte Optronics.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (American Xtal Technology)
Distributions from the Escrow Fund. (a) Upon execution To exercise the rights of one or more Summit Indemnitees under Section 5.09 of the Reorganization Agreement (the "Indemnification Rights"):
(i) Summit shall notify the Principal Shareholders and delivery the Escrow Agent that it intends to exercise the indemnification right provided for by the Reorganization Agreement ("Indemnification Notice") and shall specify in the Indemnification Notice its reasonable estimate of the amount sought (such amount, as it may be revised from time to time, being referred to herein as the "Claim Amount") and the nature of and basis for the claim, damage, liability or expense ("Claim") giving rise to the exercise of the Indemnification Right;
(ii) In the event the Principal Shareholders do not pay the Claim Amount to Summit in accordance with Section 3(d) below within 15 days of receipt of the Indemnification Notice (a "Refusal"), Summit shall notify the Principal Shareholders and the Escrow Agent of its selection of an arbitrator, giving name and address and telephone number where the arbitrator can be reached during normal business hours (the "Arbitrator Notice");
(iii) Within 30 days of receipt of the Arbitrator Notice, the Principal Shareholders shall notify Summit and the Escrow Agent of their selection of an arbitrator, giving name and address and telephone where the arbitrator can be reached during normal business hours (the "Second Arbitrator Notice");
(iv) The arbitrators so designated shall meet within 10 days after Summit's receipt of the Second Arbitrator Notice and shall designate a third arbitrator who shall serve as chairman of the board of arbitrators. If for any reason the two selected arbitrators fail to agree upon such third arbitrator, either Summit or the Principal Shareholders may request such appointment by the American Arbitration Association (or any successor organization);
(v) Arbitration shall be conducted in Princeton, New Jersey, or at another location mutually agreed to by all three arbitrators. All arbitration shall be governed (except as expressly modified herein) in accordance with the Rules of the American Arbitration Association (or any successor organization) pertaining to commercial arbitration before three arbitrators. After such hearings as the arbitrators determine to be useful in their consideration of the dispute, the arbitrators shall resolve the dispute and make such award as the arbitrators shall determine. The decision of the arbitrators shall be binding on all parties and may be entered as a judgment in any court having jurisdiction; and
(vi) Summit and the Principal Shareholders shall pay the fees and expenses of the arbitrator appointed by or on behalf of it or them, as the case may be, and Summit and the Principal Shareholders shall each (the Principal Shareholders being considered a single entity for all purposes of this Agreement) pay one-half of the fees and expenses of the third arbitrator, unless (A) the board of arbitration in the certified final award in arbitration that it shall issue ("Certified Arbitration Award") shall find that either the exercise of the Indemnification Right by Summit or the Refusal by the Principal Shareholders to have been frivolous or without merit, in which case the party found to have acted frivolously or without merit shall be responsible for all fees and expenses of all arbitrators, or (B) the board of arbitration shall find otherwise in its Certified Arbitration Award, in which case the fees and expenses of the arbitrators shall be the responsibility of the parties as specified in the Certified Arbitration Award.
(b) Promptly upon receipt of a Certified Arbitration Award providing for an award to a Summit Indemnitee, the Seller Escrow Agent shall:
(i) disburse to Summit out of the Escrow Fund Cash Consideration in an amount equal to the award specified in the Certified Arbitration Award (the "Award Amount"); or
(ii) if there shall be insufficient Cash Consideration in the Escrow Fund to pay an amount equal to the Award Amount, the Escrow Agent shall sell Escrow Shares in sufficient number to produce, after all costs and expenses of sale are deducted, sale proceeds which together with any other cash in the Escrow Fund are at least equal to the Award Amount (an "Award Sale") and shall disburse to Summit out of the Escrow Fund Cash Consideration equal to the Award Amount.
(c) Promptly upon a failure of the Principal Shareholders to provide the Second Arbitrator Notice to both Summit and the Purchaser shall deliver Escrow Agent within the 30-day period provided for such notice in Section 3(a)(iii) above, the Escrow Agent shall:
(i) disburse to Summit out of the Escrow Fund Cash Consideration in an amount equal to the lead placement agent under Claim Amount; or
(ii) if there shall be insufficient Cash Consideration in the Debt Offering Memorandum Escrow Fund to pay an amount equal to the Claim Amount, the Escrow Agent shall sell Escrow Shares in sufficient number to produce, after all costs and expenses of sale are deducted, sale proceeds which together with any other Cash Consideration in the Escrow Fund are at least equal to the Claim Amount (a "Claim Sale") and shall disburse to Summit out of the Escrow Fund Cash Consideration equal to the Claim Amount.
(d) The Principal Shareholders may pay the Claim Amount, as such action is contemplated by Section 3(a)(ii) above, either by delivering a certified or bank cashier's check, money order or wire transfer to Summit in an amount equal to the Claim Amount within the 15 days provided for such prepayment by said Section 3(a)(ii) or by delivering written notice instructions within such 15 day period to the Escrow Agent, with a copy simultaneously transmitted to Summit, directing the Escrow Agent to satisfy the relevant Claim from the Escrow Fund ("Payment Instructions") by (i) delivering to Summit Cash Consideration from the Escrow Fund in an amount equal to the Claim Amount, (ii) by delivering to Summit a number of whole Escrow Shares which have a Fair Market Value (as defined below) as of the date of delivery as nearly equal to, but not less than, the Claim Amount, or (iii) delivering to Summit Cash Consideration in such amount and whole Escrow Shares having such Fair Market Value that when combined such amount and such Fair Market Value equal the Purchase Price monies and relevant Claim Amount, subject in all cases to the Certificate have been delivered to following conditions:
(1) In the event Payment Instructions shall instruct the Escrow Agent pursuant to clause (i) of this Agreement. Furthermore, such notice shall provide that, upon the pricing of the offering of debt contemplated by the Debt Offering Memorandum (the "Debt Offering"), the delivery by the Seller and the lead placement agent of the Joint Notice (as defined below), and the delivery Section 3(d) to deliver to Summit Cash Consideration equal to the Claim Amount and if there is insufficient Cash Consideration in the Escrow Agent of confirmation of Fund to satisfy the closing of the Debt Offering provided for in Section 3(b) belowClaim, the Escrow Agent will disburse the proceeds of the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly shall sell as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund.
(b) On or before the Proposed Offering Closing Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly soon as practicable after receipt of the Purchaser's notice Payment Instructions a sufficient number of Escrow Shares to produce, after all costs and expenses of sale are deducted, sale proceeds which together with any other Cash Consideration in the Escrow Fund are at least equal to the Claim Amount and shall pay Cash Consideration equal to the Claim Amount to Summit.
(2) In the event Payment Instructions shall instruct the Escrow Agent pursuant to clause (iii) of this Section 3(d) to deliver to Summit Cash Consideration and whole Escrow Shares equal to the Claim Amount but there is insufficient Cash Consideration in the Escrow Fund to carry out the Payment Instructions, the Escrow Agent shall deliver to Summit a number of whole Escrow Shares which have a Fair Market Value as of the date of delivery as nearly as equal as possible to, but not less than, the Claim Amount.
(3) Upon its receipt of Payment Instructions, the Escrow Agent shall pay to Summit as soon as practicable thereafter, subject to and in accordance with this Section 3(d), such Cash Consideration, if any, and such whole Escrow Shares, if any, as directed in the Payment Instructions.
(e) In lieu of the disbursement of Escrow Shares to Summit from the Escrow Fund pursuant to this Section 3(c3, a Principal Shareholder may pay the Claim Amount at any time prior to the disbursement of such Escrow Shares by delivering a certified or bank cashier's check, money order or wire transfer to Summit in an amount equal to the Claim Amount. In the event of such payment by a Principal Shareholder pursuant to this Section 3(e), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent in writing shall release to such effect, and Principal Shareholder such number of Escrow Shares which have a Fair Market Value as of the Escrow Agent shall, as promptly as practicable after its receipt date of such notice: (i) liquidate all investments in payment as nearly as equal to, but not more than, the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as Claim Amount. Such release shall be received upon the liquidation of credited solely against such investments Principal Shareholder's Subaccount (and any and all other amounts then on deposit as defined in the Escrow FundSection 4(g) below); and (ii) return the Certificate to the Seller.
Appears in 1 contract
Distributions from the Escrow Fund. In the event that (a) Upon execution and delivery of this the Seller Representatives shall not have objected to the amount claimed by the Purchaser for indemnification with respect to any Damages in accordance with the procedures set forth in the Escrow Agreement, or (b) the Seller Representatives shall have delivered notice of their disagreement as to the amount of any indemnification requested by the Purchaser and either (i) the Seller Representatives and the Purchaser shall deliver have, subsequent to the lead placement agent under the Debt Offering Memorandum a written notice giving of such notice, mutually agreed that the Purchase Price monies Sellers are obligated to indemnify the Purchaser for a specified amount and the Certificate shall have been delivered to so jointly notified the Escrow Agent pursuant to this Agreement. Furthermore, such notice or (ii) a final nonappealable judgment shall provide that, upon the pricing of the offering of debt contemplated have been rendered by the Debt Offering Memorandum (court having jurisdiction over the "Debt Offering"), the delivery matters relating to such claim by the Seller and Purchaser for indemnification from the lead placement agent of the Joint Notice (as defined below), and the delivery to the Escrow Agent of confirmation of the closing of the Debt Offering provided for in Section 3(b) below, the Escrow Agent will disburse the proceeds of the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), Sellers and the Escrow Agent shall, as promptly as practicable thereafter (and in any eventshall have received, in time to enable the Escrow Agent to transfer the proceeds case of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(bclause (i) belowabove, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund.
(b) On or before the Proposed Offering Closing Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation written instructions from the Seller Representatives and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds)Purchaser or, with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery case of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly as practicable after receipt of the Purchaser's notice pursuant to this Section 3(c), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and clause (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination a copy of the Purchase Agreementfinal nonappealable judgment of the court, the Seller or the Purchaser shall notify the Escrow Agent shall deliver to the Purchaser from the Escrow Fund any amount determined to be owed to the Purchaser under this Section 4.09, in writing accordance with the Escrow Agreement. Pursuant to such effectthe Escrow Agreement, and in the event that one or more of the Milestones set forth in Schedule 1.05 are not fully achieved by the end of 24 months from the date hereof, the Escrow Agent shall, as promptly as practicable after its receipt of such notice: (i) liquidate shall return all investments remaining amounts in the Escrow Fund to Purchaser and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in Seller Representatives will provide written instructions directing the Escrow Fund); and (ii) return the Certificate Agent to the Sellermake such distribution.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ventana Medical Systems Inc)
Distributions from the Escrow Fund. All distributions from the Escrow Fund pursuant to this Agreement will be made in accordance with the following provisions.
(a) Upon execution and delivery of this Agreement, Any distribution by Escrow Agent to Buyer will be made first from the Seller and the Purchaser shall deliver to the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies and the Certificate have been delivered to available cash in the Escrow Agent pursuant to this Agreement. Furthermore, such notice shall provide that, upon the pricing of the offering of debt contemplated by the Debt Offering Memorandum Fund (the "Debt OfferingCASH FUNDS"), the delivery by the Seller and the lead placement agent of the Joint Notice (as defined below)) until such Cash Funds are exhausted, and the delivery to next from the Escrow Agent Shares until such Escrow Shares are exhausted. For purposes of confirmation of the closing of the Debt Offering provided for in Section 3(b) belowthis section, any distribution from the Escrow Agent Shares will disburse the proceeds of be made first from the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B Shares with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date highest value per share as set forth in Section 3(bSECTION 7(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund.
(b) On For the purposes of determining the number of shares of Buyer Common Stock to be distributed to Buyer or before to the Proposed Offering Closing DateSellers in accordance with this Agreement, the Seller shall deliver a list shares of persons who Buyer Common Stock will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described valued in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceedsaccordance with SECTIONS 4(a)(1), with the sole exception of disbursement of 4(b)(1) and 4(c)(1). The Sellers will be deemed to contribute shares from the Escrow Fund in satisfaction of any Claim pursuant to SECTION 14 on a pro rata basis in accordance with the Seller and delivery percentages set forth opposite such Sellers' respective names on EXHIBIT A attached hereto under the column entitled "Percentage of Amounts in Escrow Fund" (as the Certificate same may be supplemented or replaced from time to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering time by written notice to the Seller), the Escrow Agent shall: (i) pay in full to the from Buyer and Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.Representative).
(c) The parties acknowledge and agree that Subject to SECTION 8, any distribution by Escrow Agent to the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of Sellers from the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares will be made in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form percentages set forth opposite such Sellers' respective names on EXHIBIT A attached hereto under the column entitled "Percentage of Amounts in Escrow Fund" (as Exhibit D. In such event, the same may be supplemented or replaced from time to time by written notice to Escrow Agent shallfrom Buyer and the Seller Representative). Distributions to the Sellers will be made by mailing checks or certificates representing shares of Buyer Common Stock, as promptly the case may be, to the Sellers at their respective addresses as practicable after receipt of the Purchaser's notice pursuant to this Section 3(c), liquidate all investments in the Escrow Fund and comply with the provisions of clauses shown on EXHIBIT A (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto or such other address as Exhibit C.
(d) Upon the termination of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent may be provided in writing to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt of by any such notice: (i) liquidate all investments in Seller or by the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow FundSeller Representative); and (ii) return the Certificate to the Seller.
Appears in 1 contract
Distributions from the Escrow Fund. (a) Upon execution and delivery of this Agreement, the Seller and the Purchaser shall deliver to the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies and the Certificate have been delivered to the The Escrow Agent pursuant to this Agreement. Furthermore, such notice shall provide that, make distributions of Escrow Fund only as provided below:
(i) As soon as practicable upon the pricing of the offering of debt contemplated receipt by the Debt Offering Memorandum (the "Debt Offering"), the delivery by the Seller and the lead placement agent of the Joint Notice (as defined below), and the delivery to the Escrow Agent of confirmation [A] joint written instructions executed by Shareholders' Agent and Metavante, or [B] written instructions executed by Shareholders' Agent instructing that any part of the closing of the Debt Offering provided for in Section 3(b) belowEscrow Fund be delivered to Metavante, the Escrow Agent will shall deliver the Escrow Fund or any part thereof in accordance with said written instructions
(ii) Metavante may give the Escrow Agent written instructions (a "Claim Notice") at any time and from time to time during the period of one year after the date hereof (the "Survival Period"), which instructions shall set forth any and all claims ("Metavante Claims") that, in the opinion of Metavante, entitle any of the Parent Indemnified Parties to be indemnified, defended, or saved harmless under the Merger Agreement, together with (A) a reasonably detailed description of the facts upon which the Claim Notice is based, (B) a designation of one or more sections of the Merger Agreement under which such Metavante Claims are being made, and (C) if known, the amount that such Parent Indemnified Party(s) are seeking. Whenever Metavante gives the Escrow Agent a Claim Notice, Metavante shall simultaneously send a copy of such Claim Notice to the Shareholders' Agent. When the Escrow Agent receives a Claim Notice, it shall promptly notify the Shareholders' Agent of such receipt.
(iii) If the Escrow Agent receives a Claim Notice during the Escrow Term, it shall, to the extent the Escrow Fund is sufficient, disburse the proceeds amount requested in such Claim Notice (the "Claimed Amount") to Metavante (or such of the Parent Indemnified Parties as Metavante may designate in such Claim Notice) on the date which is 30 days after the date of receipt by the Escrow Agent of such Claim Notice, unless prior to the expiration of such 30-day period (the "Claim Objection Period") the Escrow Agent receives written notice from the Shareholders' Agent (a "Dispute Notice") that in the opinion of the Shareholders' Agent Metavante is not entitled to the disbursement with respect to all or any portion of a specific Metavante Claim set forth in such Claim Notice. If the Escrow Agent receives a Dispute Notice from the Shareholders' Agent within the Claim Objection Period, then the Escrow Agent shall, with respect to that portion of the Claimed Amount subject to such Dispute Notice, take the action described in section 2(b) below. Whenever the Shareholders' Agent gives the Escrow Agent a Dispute Notice, the Shareholders' Agent shall simultaneously send a copy of such Dispute Notice to Metavante.
(iv) On the first business day after the end of the Survival Period, the Escrow Agent shall deliver the Escrow Fund or any remaining portion thereof held in escrow pursuant to this Agreement to the Shareholders' Agent unless the Escrow Agent has received a Claim Notice with respect to a portion of the Escrow Fund on or prior to such date, the disbursement of which has not yet been made, in which event the Escrow Agent shall [a] reserve such portion of the Escrow Fund until its disposition is determined in accordance with the terms of this Agreement and [b] deliver the remainder of the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow FundShareholders' Agent.
(b) On or before the Proposed Offering Closing Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and a copy thereof to the Seller) of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly as practicable after receipt of the Purchaser's notice pursuant to this Section 3(c), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent in writing to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt of such notice: (i) liquidate all investments in the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund); and (ii) return the Certificate to the Seller.
Appears in 1 contract
Distributions from the Escrow Fund. (a) Upon execution and delivery of this Agreement, the Seller and the Purchaser The Escrow Agent shall deliver to the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies and the Certificate have been delivered to make distributions from the Escrow Agent pursuant to this Agreement. Furthermore, such notice shall provide that, upon the pricing Fund in satisfaction of the offering requirements of debt contemplated by the Debt Offering Memorandum (the "Debt Offering"), the delivery by the Seller and the lead placement agent Paragraph 5.3 of the Joint Notice SPA.
3.1. Escrow Agent shall verify the conformity of any disbursed funds being in accordance with Paragraph 5.3 of the SPA by receiving written invoices from the Company’s third-party providers and/or written voucher requests from the Company for its own internal overhead expenses, with approval to pay such invoices/vouchers being first obtained in writing (as defined below)by e-mail or facsimile transmission) from Xxxxxxx X. Xxxxxx.
3.2. Notwithstanding the provisions of Paragraph 5.3 of the SPA, and if the delivery to Company or the Participants notifies Escrow Agent of confirmation of any dispute between the closing of Company and the Debt Offering provided for in Section 3(b) below, Participants over the Escrow Agent will disburse the proceeds amount of the Escrow Fund to be paid to Participants, then the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing Escrow Agent shall hold such portion of the Debt Offering has been established between Escrow Fund (the Seller “Disputed Amount”) and not disburse it until the lead placement agent under earlier of receipt by the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date Escrow Agent of (i) Joint Instructions or (ii) a Final Award (as defined in Section 5 of this Agreement) specifying a release of monies to the Participants and/or the Company and the amounts of such monies to be released. Upon the Escrow Agent’s receipt of the Joint Notice), Instructions or the Seller and Final Award (either of which shall be the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow Fund.
(b) On or before the Proposed Offering Closing “Termination Release Date, the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined below) to the Escrow Agent pursuant to Section 3(b) below. Unless the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller”), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in disburse the Escrow Fund) by wire transfer to the Seller's account indicated , or a portion thereof, in the Joint Notice; (ii) contemporaneous accordance with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide Joint Instructions or Final Award.
3.3. The parties acknowledge that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that the Debt Offering fails to close on or before such date, the parties agree that the Purchaser may, before the expiration of the five Business Day period referenced in Section 8.1(c) of the Purchase Agreement, deliver notice to the Escrow Agent (and is identified as a copy thereof to the Seller) potential recipient of some of the Purchaser's election to proceed to consummate the sale and purchase Cash Proceeds as “in-house legal.” All distributions of any of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreement. Such notice Cash Proceeds to Escrow Agent as “in-house legal” shall be in the form attached hereto as Exhibit D. In such eventreviewed, the verified and approved by Xxxxxxx X. Xxxxxx, and Escrow Agent shall, as promptly as practicable after receipt shall provide SEC Counsel with notice of the Purchaser's notice pursuant to this Section 3(creceiving such permission(s), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent in writing to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt of such notice: (i) liquidate all investments in the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund); and (ii) return the Certificate to the Seller.
Appears in 1 contract
Distributions from the Escrow Fund. (a) Upon execution The Escrow Agent shall continue to hold the Escrow Fundestablished pursuant to Section 10.1 of the Merger Agreement until it has received written direction signed by each of the Signatories notifying the Escrow Agent of the final order, judgment, decree, award after arbitration or settlement of the Xxxxxx Litigation and instructing the Escrow Agent how to distribute the Escrow Fund. In addition, upon the delivery of this Agreement, the Seller and the Purchaser shall deliver to the lead placement agent under the Debt Offering Memorandum a written notice that the Purchase Price monies and the Certificate have been delivered said writing to the Escrow Agent pursuant to this Agreement. Furthermore, such notice shall provide that, upon directing the pricing disposition of the offering of debt contemplated by Escrow Fund, eDiets shall release in the Debt Offering Memorandum (the "Debt Offering"), the delivery by the Seller and the lead placement agent of the Joint Notice (as defined below), and the delivery to the Escrow Agent of confirmation of the closing of the Debt Offering provided for in Section 3(b) belowsame manner, the Escrow Agent will disburse the proceeds of the Escrow Fund to the Seller and deliver the Certificate to the Purchaser in accordance with this Section 3. As promptly as practicable after the Purchaser and the Seller have received evidence (which the parties agree may be telephonic or otherwise) that the pricing of the Debt Offering has been established between the Seller and the lead placement agent under the Debt Offering Memorandum and, in any event, at least one full Business Day prior to the Proposed Offering Closing Date (as defined in the Joint Notice), the Seller and the Purchaser shall deliver written notice to the Escrow Agent substantially in the form attached hereto as Exhibit B with the blanks properly filled in (the "Joint Notice"), and the Escrow Agent shall, as promptly as practicable thereafter (and in any event, in time to enable the Escrow Agent to transfer the proceeds of the Escrow Fund on the Proposed Offering Closing Date as set forth in Section 3(b) below, unless the Escrow Fund is invested in a vehicle other than the BT Institutional Cash Management Fund), liquidate all investments in the Escrow FundShares.
(b) On or before With respect to any escrow established pursuant to Section 10.3 of the Proposed Offering Closing Date, Merger Agreement (the Seller shall deliver a list of persons who will be authorized to give the Placement Agent Confirmation (as defined belowRecognition GroupEscrow") to the Escrow Agent pursuant to Section 3(b) below. Unless shall hold the amount placed on account of the Recognition Group Claim in the Escrow Fund until it has received written direction signed by each of the Signatories notifying the Escrow Agent receives the notice described in Section 3(c) below after the Escrow Agent receives the Joint Notice, the Escrow Agent shall, as promptly as practicable after its receipt of confirmation from the Seller and the lead placement agent (the "Placement Agent Confirmation") under the Debt Offering Memorandum (which the parties agree may be telephonic or otherwise) to the effect that all of the conditions to closing final order, judgment, decree, award after arbitration or settlement and directing the release of the Debt Offering and delivery to the Seller of a minimum of an aggregate of $100 million in gross proceeds therefrom have either been satisfied or waived (other than a waiver of the impending delivery to the Seller of such proceeds), with the sole exception of disbursement of the Escrow Fund to the Seller and delivery of the Certificate to the Purchaser (and, therefore, that such placement agent then controls the delivery of proceeds from the Debt Offering to the Seller), the Escrow Agent shall: (i) pay in full to the Seller in immediately available funds all amounts as shall have been received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund) by wire transfer to the Seller's account indicated in the Joint Notice; (ii) contemporaneous with such delivery of funds to the Seller, deliver the Certificate to the Purchaser at the address set forth in the Joint Notice via overnight delivery service; and (iii) immediately after accomplishing the items set forth in (i) and (ii) hereof, provide the Seller and the lead placement agent under the Debt Offering Memorandum with written notice in the form attached hereto as Exhibit C.Recognition Group Claim escrow funds.
(c) The parties acknowledge and agree that the terms of the Purchase Agreement provide that the Purchaser may elect to proceed with the disbursement of the Escrow Fund proceeds to the Seller and delivery of the Certificate to the Purchaser even though the Debt Offering fails to close on or before April 30, 1997. In the event that eDiets determines that it has a claim for indemnification pursuant to the Debt Offering fails Merger Agreement and wishes to close on or before such date, the parties agree that the Purchaser may, before the expiration establish an indemnification claims escrow pursuant to Section 10.2 of the five Business Day period referenced in Section 8.1(c) of the Purchase Merger Agreement, deliver it shall provide notice to the Principal Stockholders and the Escrow Agent specifying in reasonable detail the basis for its claim (a "Claim") and a copy thereof to the Seller) its estimate of the Purchaser's election to proceed to consummate the sale and purchase of the Shares in accordance with the provisions of Section 8.1(c) of the Purchase Agreementamount thereof. Such notice shall be in the form attached hereto as Exhibit D. In such event, the Escrow Agent shall, as promptly as practicable after receipt out of the Purchaser's notice pursuant to this Section 3(c), liquidate all investments in the Escrow Fund and comply with the provisions of clauses (i) and (ii) of Section 3(b) above and immediately after accomplishing the items set forth in (i) and (ii) above, provide the Seller and the Purchaser with written notice in the form attached hereto as Exhibit C.
(d) Upon the termination installments of the Purchase Agreement, the Seller or the Purchaser shall notify the Escrow Agent Cash Consideration (as defined in writing to such effect, and the Escrow Agent shall, as promptly as practicable after its receipt of such notice: (i) liquidate all investments in the Escrow Fund and pay in full to the Purchaser in immediately available funds all such amounts as shall be received upon the liquidation of such investments (and any and all other amounts then on deposit in the Escrow Fund); and (ii) return the Certificate to the Seller.the
Appears in 1 contract
