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Common use of Escrow Clause in Contracts

Escrow. (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Preferred Employers Holdings Inc), Stock Purchase Agreement (Preferred Employers Holdings Inc)

Escrow. As security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of Purchaser's Shares upon exercise of the Repurchase Option, the Purchaser hereby pledges and delivers for deposit with the [Chief Financial Officer] of the Company, or such other person designated by the Company, as escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the certificate or certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of the Company and the Purchaser: (a) On In the date hereofevent the Company and/or any assignee of the Company exercises the Repurchase Option, Buyer, each Seller Purchaser and an escrow agent selected by Buyer the Company hereby irrevocably authorize and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in direct the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent to execute the Purchased Shares. The Purchased Shares shall be held transaction contemplated by notice of repurchase in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to accordance with the terms of the NET Escrow Agreementsuch notice. (b) On In connection with such transaction the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent is directed (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of Transaction shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares determined in accordance to be transferred, to the Company against the delivery of the purchase price for the number of shares of stock being purchased pursuant to the exercise of the Repurchase Option. (c) Purchaser irrevocably authorizes the Company to deposit with Section 1.2. The the Escrow Agent any certificates evidencing the Shares shall to be held in by the Escrow Agent hereunder and any additions and substitutions to said shares as defined herein. Purchaser irrevocably constitutes and appoints the Escrow Agent as his attorney-in-fact and agent for the term of this escrow until December 31to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated. (d) Upon written request of the Purchaser, 1998 (but no more than once per calendar year, unless the Repurchase Option has been exercised, the Escrow Agent will deliver to Purchaser a certificate or certificates representing so many of the Shares as are not then subject to the terms Repurchase Option. Within 180 days after cessation of Purchaser's continuous employment by the Company, or any parent or subsidiary of the Company, the Escrow Agent will deliver to Purchaser a certificate or certificates representing the aggregate number of Shares sold pursuant to this Agreement and not repurchased by the Company or its assignees pursuant to exercise of the Repurchase Option. (e) If at the time of termination of this escrow the Escrow Agent has in his possession any documents, securities, or other property belonging to Purchaser, the Escrow Agent shall deliver such property to Purchaser and be discharged of all further obligations hereunder. (f) The responsibilities of the Escrow Agreement)Agent hereunder shall terminate if he shall cease to be Chief Financial Officer of the Company or if he shall resign by written notice to each party. The Indemnification Shares In the event of any such termination or resignation, the Company shall appoint a successor Escrow Agent. In the absence of such appointment, the President of the Company shall be the Escrow Agent. (g) It is understood and agreed that should any dispute arise with respect to the delivery, ownership, or right of possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part of said Shares until such disputes shall have been settled either by mutual written agreement or by a final order, decree, or judgment of the arbitrator, if applicable, or of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend such proceedings. (h) By signing this Agreement, the Escrow Agent becomes a period party hereto only for the purpose of twelve (12) months following executing the Closing Date, unless disbursed earlier to Buyer for Claims pursuant instructions set forth in this Section 7 and does not otherwise become a party to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 2 contracts

Samples: Restricted Stock Purchase Agreement (Log Point Technologies Inc), Restricted Stock Purchase Agreement (Log Point Technologies Inc)

Escrow. (aAs security for a Participant’s faithful performance of the provisions of this Agreement, the participant agrees that the stock certificate(s) On evidencing the date hereofRestricted Shares shall be delivered to the Escrow Holder, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"who is hereby appointed to hold such stock certificate(s) in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Restricted Shares as are in accordance with the form terms of EXHIBIT 1.3A hereto pursuant this Agreement. The Escrow Holder will act solely for the Corporation as its agent and not as a fiduciary. The Participant and the Corporation agree that the Escrow Holder will not be liable to which Sellers shalleither (or to any other party) for any actions or omissions unless the Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of the Escrow Holder under this subsection (c). The Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the date hereofadvice of counsel (which may be counsel for the Corporation) and obey any order of any court with respect to the transactions contemplated by this Agreement. In the event that the Corporation exercises its right to repurchase Restricted Shares held by the Escrow Holder, then upon payment by the Corporation of the Consideration for such Restricted Shares, the Escrow Holder shall deliver to the NET Escrow Agent Corporation the Purchased stock certificate(s) evidencing those Restricted Shares. The Purchased Shares shall Escrow Holder is empowered to act as the Participant’s attorney-in-fact to make such endorsements and execute such stock powers as may be held in escrow until necessary to effect the Closing Date at which time they repurchase contemplated under this Section. The Escrow Holder will be delivered to Buyerrelease from escrow, pursuant and deliver to the terms of Participant, only those stock certificates that evidence the NET Escrow Agreement. Restricted Shares for which the Corporation’s right to repurchase, as described in subsection (b) On the Closing Dateabove, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datehas expired.

Appears in 2 contracts

Samples: Executive Employment Agreement (Iptimize, Inc.), Executive Employment Agreement (Iptimize, Inc.)

Escrow. (a) On At the date hereof, BuyerClosing Parent shall deposit two letters of credit (each a “Letter of Credit”) issued by a bank or other reputable financial institution, each Seller and an escrow agent selected by Buyer and Sellers of which Letters of Credit may be drawn upon in the amount of $10,000,000 as described below ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"the $20,000,000 total amount to be drawn upon under the Letters of Credit being referred to herein as the “Escrow Amount”) in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of an Escrow Agreement in the NET form of Exhibit E hereto, with such changes thereto as may reasonably be required by the escrow agent thereunder (the “Escrow Agreement”) among Parent, Company, the Shareholder Representative and a bank or other financial institution reasonably satisfactory to Parent, Company and the Shareholder Representative, as escrow agent thereunder (in such capacity, the “Escrow Agent”). (b) On If any shareholders of Company exercise, perfect and/or reserve their appraisal or dissenters rights pursuant to, and in accordance with, the TBCA and if such shareholders of Company do not withdraw such shareholders’ demand for appraisal prior to the expiration of the period of time during which such shareholders of Company are permitted to effect such withdrawal under the TBCA, then, immediately after the first anniversary of the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer Escrow Agent shall deliver to Parent the amount by which the Escrow Agent Amount exceeds the number Escrow Funds. (c) For purposes of Transaction Shares determined in accordance with Section 1.2. The this Agreement, the term “Escrow Shares Funds” shall mean an amount equal to the product obtained by multiplying the Escrow Amount, without interest, by a fraction, the numerator of which shall be held in escrow until December 31, 1998 (subject equal to the terms Total Company Shares less the Dissenting Shares, and the denominator of the Escrow Agreement). The Indemnification Shares which shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and equal to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateTotal Company Shares.

Appears in 1 contract

Samples: Merger Agreement (Susser Holdings CORP)

Escrow. Notwithstanding the provisions of Article I of this Agreement, Parent will deposit with the Escrow Agent a number of shares of Parent Common Stock equal to the quotient of (a) On Twenty Million Dollars ($20,000,000) divided by (b) the date hereof, Buyer, each Seller Average Pre-Closing Price of Parent Common Stock (the “Escrow Shares”) to be held and an escrow agent selected disbursed by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent in accordance with the Purchased SharesEscrow Agreement. The Purchased Shares shall be held in escrow until the Closing Date at which time they Company will be delivered deemed, without any action on its part, to Buyer, have received and deposited with the Escrow Agent pursuant to the terms Escrow Agreement the Escrow Shares. All shares of Parent Common Stock to be received by the NET Company in connection with the Mergers, other than the Escrow Agreement. (b) On Shares will be distributed to the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto Company pursuant to which Buyer shall deliver to Escrow Agent the number Article I of Transaction Shares determined in accordance with Section 1.2this Agreement. The Escrow Shares shall will be held represented by a certificate registered in escrow until December 31, 1998 (subject to the terms name of the nominee of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve Agent (12) months following with the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, Company being the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms beneficial owner of the Escrow Agreement shall Shares). To the extent that any dividend or distribution, or other transaction with respect to the Escrow Shares, results in a liability for Tax, such Tax liability will be determined by averaging the closing sales price that of the Parent Stock (orCompany and not of Parent, in case no reported sales take place on such dayTTH Surviving Corporation, MHI Surviving Corporation or any other Subsidiary of Parent. Any and all voting rights with respect to the Escrow Shares will be exercisable by the Company as of the Effective Time. Parent, the average Company, the Merger Subs and the Target Companies hereby agree and acknowledge that the Escrow Shares will be treated as transferred to and owned by the Company as of the closing bid Effective Time and ask prices on such dayat all times thereafter for all Tax purposes. The Escrow Shares will be used to satisfy indemnity claims made by Parent pursuant to Section 7.2(e) on the Nasdaq SmallCap Market for the five (5and Section 9.2(a) consecutive trading days prior to the Closing Dateof this Agreement.

Appears in 1 contract

Samples: Merger Agreement (E Trade Group Inc)

Escrow. At the Closing the parties shall deposit $1,200,000 in cash (asuch cash, together with all earnings thereon is referred to as the “Escrow Cash”) On deducted from the date hereoftotal Merger Consideration otherwise payable to each of the Company’s shareholders on a pro-rata basis, Buyer, each Seller and in an escrow agent selected by Buyer and Sellers account ("NET ESCROW AGENT"“Indemnification Escrow Account”) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until such Indemnification Escrow Agreement during the Closing period ending two (2) years from the Effective Date at which time they will be delivered to Buyer(“Escrow Period”), pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT"“Escrow Agreement”) substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject negotiated prior to the terms of Closing by ProMed Pomona, the Representative (as defined in Section 1.16 (a) and Group, with an escrow agent mutually acceptable to the parties (“Escrow AgreementAgent”). The Indemnification Shares Escrow shall be held for provide a period source of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy funds for the payment indemnity obligations set forth in Section 7.2(a) of any Losses for which Buyer may be entitled to indemnification as and this Agreement and, to the extent provided in Article VI hereofSection 7.6, the indemnity obligations set forth in Section 7.2(a) of the agreement and plan of reorganization for the ProMed Company Acquisition (the “ProMed Company Acquisition Agreement”). The value of any Indemnification Shares paid to Buyer Escrow Account established pursuant to this Section 1.15 and the terms indemnification escrow account established pursuant to Section 1.15 of the ProMed Company Acquisition Agreement shall be collectively referred to as the “Indemnification Escrow Fund”. Except for those claims set forth in Sections 7.2(b) and Section 7.4 of the Agreement and Sections 7.2(b) and 7.4 of the ProMed Company Acquisition Agreement, the Indemnification Escrow Fund shall be the exclusive source of indemnity funds for claims of Group, Group Subsidiary, Holdings, and Surviving Corporation or their respective directors, officers, employees, agents and affiliates. Subject to Article 7, (i) on the first business day following the first anniversary of the Effective Date, the Escrow Agent shall deliver 25% of the Escrow Agreement shall be determined by averaging Cash in the closing sales price Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for indemnification and any amounts reserved against pending claims related to the Parent Stock indemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the ProMed Company Acquisition, to each of ProMed Pomona’s former shareholders, after giving effect to the Merger (or“Former Shareholders”) in the same proportions as initially deposited in the Indemnification Escrow Account, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day(ii) on the Nasdaq SmallCap Market first business day following the conclusion of the Escrow Period, the Escrow Agent shall deliver the remaining Escrow Cash in the Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for the five (5) consecutive trading days prior indemnification and any amounts reserved against pending claims related to the Closing Dateindemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the ProMed Company Acquisition, to each of the Former Shareholders in the same proportions as initially deposited in the Indemnification Escrow Account.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)

Escrow. As partial security against (ai) On termination of this Agreement by Buyer pursuant to Section 9.5 below, (ii) any indemnification claims by the date Buyer pursuant to Section 6.7 of this Agreement, (iii) any Pre-Closing Revenue Deficiency, and/or (iv) any Post-Closing Revenue Deficiency, upon full execution hereof, Buyer, each Seller and Buyer shall deposit the Deposit Shares in an escrow agent selected by Buyer and Sellers account ("NET ESCROW AGENT"the “Escrow Account”) shall execute and deliver an escrow agreement to be established with Globex Transfer LLC ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased SharesAgent”). The Purchased Deposit Shares shall be held by the Escrow Agent pursuant to the terms and conditions of an Escrow Agreement in escrow until the form attached hereto as Exhibit C (the “Escrow Agreement”). Subject to Section 2.5(a) and 2.5(b) below, (i) promptly following completion of FRLF’s audit of the Assets by its auditor, the Buyer and the Sellers shall execute a joint instruction to the Escrow Agent directing the Escrow Agent to deliver a 50% portion of the Deposit Shares remaining in the Escrow Account at such time to the Sellers’ Representative on behalf of the Sellers, and (ii) promptly following 4 months subsequent to the Closing Date unless there is a disagreement between the Buyer and the Sellers, the Buyer and the Sellers shall execute a joint instruction to the Escrow Agent directing the Escrow Agent to deliver any portion of the Deposit Shares remaining in the Escrow Account at such time to the Sellers’ Representative on behalf of the Sellers. The scheduled distribution dates in this Section 2.5 shall each be referred to as a “Release Date”. (a) In the event that, prior to 5 months subsequent to the Closing, the Sellers shall be obligated to pay any amounts due to the Buyer under (i) any settlement agreement between the parties, or (ii) any judgment or order from a court of competent jurisdiction (which time they will be delivered judgment or order is final and either non-appealable or the deadline to Buyermake appeal therefrom shall have passed), in either case, regarding any claims for Losses made by the Buyer pursuant to Section 6.7 of this Agreement, then the Buyer and the Sellers shall promptly execute a joint instruction to the Escrow Agent directing the Escrow Agent to deliver a number of the Deposit Shares remaining in the Escrow Account to FRLF equal to such amounts divided by $0.23/share (along with duly executed stock powers sufficient to reissue the shares to FRLF), and the remaining balance of Deposit Shares held, if any, pursuant to the Escrow Agreement shall be retained in accordance with the terms of this Section 2.5 and the NET Escrow Agreement. (b) On In the Closing event that the Buyer shall have made claim(s) for Losses pursuant to Section 6.7 of this Agreement and such indemnification claim(s) remain outstanding as of a Release Date, Buyerthen the Deposit Shares scheduled to be released to the Stockholders on such Release Date shall only be delivered to the Stockholders to the extent that the amount of such indemnification claim(s) (the “Claim Amount”), each Seller and an escrow agent selected is less than the amount of Deposit Shares that would be held pursuant to the Escrow Agreement after giving effect to such scheduled release multiplied by $0.23/share, in which case, (i) promptly following the Release Date, the Buyer and the Sellers ("ESCROW AGENT") shall execute and a joint instruction to the Escrow Agent directing the Escrow Agent to deliver to Sellers an escrow agreement ("ESCROW AGREEMENT") substantially in amount of the form Deposit Shares equal to the amount of EXHIBIT 1.3B hereto Deposit Shares scheduled to be released to the Sellers on such Release Date, subject to any reduction needed to ensure that the amount of the Deposit Shares that would be held pursuant to which the Escrow Agreement after giving effect to such release equal the Claim Amount divided by $0.23/share, (ii) the Buyer and the Stockholders shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject execute any required amendments to the terms Escrow Agreement in order to extend the period of the Escrow Agreement, and (iii) the portion of the Deposit Shares then held pursuant to the Escrow Agreement equal to the Claim Amount divided by $0.23/share shall remain held in escrow pending the resolution of such indemnification claim. Upon resolution of such outstanding indemnification claim(s). The Indemnification , either by mutual agreement of the parties or pursuant to a judgment or order from a court of competent jurisdiction (which judgment or order is final and either non-appealable or the deadline to make appeal therefrom shall have passed), the Buyer and the Sellers shall promptly execute a joint instruction to the Escrow Agent directing the amount of Deposit Shares shall then held pursuant to the Escrow Agreement to be delivered to (i) Buyer for any amounts which Buyer is entitled to receive as a result of the resolution of such outstanding indemnification claims(s), and (ii) the Sellers for the amount, if any, by which a prior release was reduced to ensure that the amount of Deposit Shares that would continue to be held for a period of twelve (12) pursuant to the Escrow Agreement were equal to the Claim Amount divided by $0.23/share and, if subsequent to 4 months following the Closing Date, unless disbursed earlier to Buyer for Claims any remaining balance pursuant to the Escrow Agreement. (c) With respect to the Sellers’ obligations to indemnify for Losses pursuant to Section 6.7 of this Agreement. Other than for Claims of fraud, the Indemnification Shares orBuyer shall make demand for payment under the Escrow Agreement prior to instituting any proceedings or taking any other action against the Sellers, in unless the event failure to institute proceedings or take such shares are soldother action shall prejudice the Buyer’s ability to make such indemnification claim, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of and any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid amounts owed to Buyer pursuant to the terms Section 6.7 of the Escrow Agreement this Agreement, after application of this Section 2.5, shall be determined by averaging the closing sales price of the Parent Stock (or, paid to Buyer in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datecash.

Appears in 1 contract

Samples: Asset Purchase Agreement (Freedom Leaf Inc.)

Escrow. (a) On Upon receipt thereof, Winter Harbor shall deposit in an interest bearing escrow (the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENTEscrow") shall execute the Purchase Price and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant those securities issued to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, Winter Harbor pursuant to the terms Securities Exchange Agreement (such securities and any additional or other shares or securities or property into which such securities are converted or for which such securities are exchanged including through any reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, or other transaction being the "Issued Securities"). The Escrow shall terminate, and the remaining contents thereof transferred to Winter Harbor, free and clear of any claim, liens, encumbrances by Purchaser or any Purchaser Indemnified Party, upon the first occurrence of an Escrow Termination Event. An Escrow Termination Event shall have occurred upon the earlier of (i) the end of the NET Escrow 540th day after the date of this Agreement, if during such period no Red Cube AG Claim premised upon the Red Cube AG Securities Purchase Agreement has been initiated (other than a claim in connection with the mediation currently pending before the American Arbitration Association), and (ii) the final resolution or settlement of all claims brought against Winter Harbor or Purchaser before the 540th day after the date of this Agreement that could result in potentially indemnifiable losses related to any Red Cube AG Claim. (b) On Winter Harbor and Purchaser acknowledge that as a result of the Closing Datetransaction contemplated by this Agreement, Buyerthere is a risk that Purchaser or a Purchaser Indemnified Party may be exposed to (i) Losses resulting from a determination and order by a court of competent jurisdiction, each Seller and an escrow agent selected by Buyer and Sellers arbitral panel or other adjudicatory entity that, pursuant to the Red Cube AG Securities Purchase Agreement, Red Cube AG is entitled to the transfer of ownership from Purchaser of all or substantially all the Covered Securities (a "ESCROW AGENTSpecific Performance Claim") shall execute or (ii) Losses premised upon the Red Cube AG Securities Purchase Agreement and deliver which arise from a Red Cube AG Claim which is not a Specific Performance Claim (a "Red Cube Damage Claim"). If, prior to the occurrence of an escrow agreement ("ESCROW AGREEMENT"Escrow Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Specific Performance Claim or a claim under Section 6.1(a) substantially above, then Winter Harbor shall, solely out of and up to a maximum of the Issued Securities and Purchase Price deposited in the form Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with such Specific Performance Claim or claim under Section 1.26.1(a) above. The Escrow Shares shall be held in escrow until December 31If, 1998 (subject prior to the terms occurrence of an Escrow Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Red Cube Damage Claim, then Winter Harbor shall, solely out of and up to a maximum of the Escrow Agreement)Issued Securities deposited in the Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of such Red Cube Damage Claim. The Indemnification Shares Winter Harbor's total aggregate liability for all Specific Performance Claims and all claims under Section 6.1(a) above shall be held not exceed the loss of its right to the Issued Securities and Purchase Price deposited in the Escrow. Winter Harbor's total aggregate liability for all Red Cube Damage Claims shall not exceed the loss of its right to the Issued Securities deposited in the Escrow. (c) All Losses properly due a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims Purchaser or Purchaser Indemnified Person pursuant to this Section 6.3, Section 6.1 and Section 6.2 (including, without limitation, reimbursement of attorneys' or other professional fees arising out of article VI of this Agreement) shall first be satisfied by transferring to Purchaser or the applicable Purchaser Indemnified Party a number of Issued Securities determined by dividing the applicable Loss by the then current market price (as calculated by the average closing price for I-Link common stock for the most recent ten (10) days upon which such securities traded) of such shares. Other than for Claims In the event that the total number of fraud, the Indemnification Shares or, Issued Securities then deposited in the event Escrow is insufficient to satisfy the applicable Losses, and solely where such shares are sold, the value thereof as determined in accordance with this Losses arise exclusively and solely from a Red Cube Specific Performance Claim or from a claim under Section 1.3(b6.1(a), any shortfall shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and satisfied by transferring to the extent provided in Article VI hereof. The value of any Indemnification Shares paid Purchaser or applicable Purchaser Indemnified Person, a portion, up to Buyer pursuant to the terms a maximum of the Escrow Agreement shall be determined by averaging the closing sales price total Purchase Price, of the Parent Stock (or, cash proceeds then deposited in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateEscrow.

Appears in 1 contract

Samples: Securities Purchase Agreement (Counsel Corp)

Escrow. As security for Purchaser's faithful performance of this Agreement, Purchaser agrees, immediately upon receipt of the stock certificate(s) evidencing Unvested Shares subject to the Repurchase Option or Shares purchased with a promissory note, to deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser's spouse, if any (a) On with the date hereofand number of Shares left blank), Buyer, each Seller and an escrow agent selected by Buyer and Sellers to the Secretary of the Company or other designee of the Company ("NET ESCROW AGENTEscrow Holder"), who is hereby appointed to hold such certificate(s) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held Stock Powers in escrow until the Closing Date at which time they will be delivered and to Buyer, pursuant take all such actions and to effectuate all such transfers and/or releases of such Shares as are in accordance with the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than Purchaser and the Company agree that Escrow Holder will not be liable to any party to this Exercise Agreement (or to any other party) for Claims any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of fraudEscrow Holder under this Exercise Agreement. Escrow Holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may rely on the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment advice of counsel and obey any order of any Losses for which Buyer may be entitled to indemnification as and court with respect to the extent provided in Article VI hereoftransactions contemplated by this Agreement. The value of any Indemnification Shares paid to Buyer pursuant to the terms will be released from escrow upon termination of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (orRepurchase Option for Unvested Shares [NOTE FOR PREPARATION OF SPECIFIC EXERCISE AGREEMENT: ADD IF SHARES ARE PLEDGED:] [PROVIDED, in case no reported sales take place on such dayHOWEVER, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateTHAT THE SHARES WILL BE RETAINED IN ESCROW SO LONG AS THEY ARE SUBJECT TO THE PLEDGE AGREEMENT].

Appears in 1 contract

Samples: Stock Option Exercise Agreement (Medical Science Systems Inc)

Escrow. (aA) On Within thirty (30) days following the date hereofEffective Date, Buyer(i) the Company shall deliver a stock certificate evidencing all Reserved Shares registered in the name of Mark J. Gundersen, each Seller Esq., Klett, Rooney, Lieber and an escrow agent selected by Buyer and Sellers Schorling, PC, Suxxx 0000, 0000 Xxst Street, Wilmington, XX 00098, nxx xxxxxxdually, but solely xx xxx xxxxxxxx xx xx xxxxxx xxxxx (xhe "NET ESCROW AGENTEscrow Agent") to the Escrow Agent and (ii) BTR shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") to the Escrow Agent a Subscription Agreement prepared by counsel to the Company substantially identical in form and content to the form of EXHIBIT 1.3A hereto Subscription Agreement appended as an exhibit to the PPM, adjusted to reflect that such subscription is not being made pursuant to which Sellers shallthe offering described in the PPM, on the date hereof, deliver but rather pursuant to the NET Escrow Agent the Purchased terms of this Agreement (a "Subscription Agreement") providing for BTR's subscription for all Reserved Shares. The Purchased Shares Such stock certificate and Subscription Agreement shall be held in escrow by the Escrow Agent until the Closing Date at which time they will be delivered to Buyer, released pursuant to the terms of the NET Escrow Agreementthis Section 2.5. (bB) On If, in BTR's sole opinion, contractual restrictions arising from agreements between BTR and third-parties (other than the Closing DateCompany under this Agreement) permit, Buyerthen BTR may request the release and issuance of a stock certificate evidencing a number of Reserved Shares equal to the quotient of (x) the then aggregate unpaid cash value of Share Payment Services performed and invoiced by BTR (exclusive of Already Paid Share Payment Services) divided by (y) the Per Share Value (the "Requested Shares"), each Seller and an escrow agent selected by Buyer and Sellers delivering written notice thereof (each, a "ESCROW AGENTRequest Notice") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in to both the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent and the number Company at any time during the term of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 this Agreement and on or before the fifteenth (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (1215th) months day following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to termination of this Agreement. Other , but in any event, no later than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock thirty (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day30) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Daterequested delivery date specified in such notice. In addition to the requested delivery date, each Request Notice shall specify (i) the aggregate unpaid cash value of the Share Payment Services performed and invoiced by BTR beyond the Already Paid Share Payment Services, and (ii) the resulting number of Requested Shares requested for release and issuance. (C) If, in respect of any Request Notice, the Company objects to the release of the applicable Requested Shares requested by BTR, the Company shall provide BTR and the Escrow Agent with a notice of objection stating the nature of the dispute and the number of Requested Shares affected by the dispute ("Notice of Objection") no later than seven (7) days prior to the requested delivery date (and Requested Shares, to the extent BTR's rights thereto are disputed by the Company are referred to as "Disputed Shares"). (D) If the Company timely issues a Notice of Objection, the Escrow Agent shall not distribute any of the Disputed Shares indicated in such Notice of Objection unless and until the Parties have resolved the dispute and submitted a mutually signed letter authorizing release or a decision of the arbitrator has been issued pursuant to Section 6.11 herein, with any such distribution being made in accordance with the terms of such letter or decision, as applicable. If the Company does not object to the release of the applicable Requested Shares, the Escrow Agent shall issue the Requested Shares in accordance with the provisions of subsections (e) and (f) below. ** CONFIDENTIAL TREATMENT REQUESTED Confidential Treatment Requested indicates portions of this document have been redacted and have been separately filed with the Commission. (E) If the number of Requested Shares is less than the undistributed balance of the Reserved Shares, then, prior to the requested delivery date specified in a timely Request Notice: (i) the Company shall deliver to the Escrow Agent, in exchange for the return of the stock certificate(s) then held by the Escrow Agent, (A) a certificate in the name of BTR evidencing the number of Requested Shares and (B) a certificate in the name of the Escrow Agent evidencing the resulting balance of the Reserved Shares which are not Already Distributed Shares; and,

Appears in 1 contract

Samples: Development Agreement (Dyadic International Inc)

Escrow. To insure the availability for delivery of Grantee’s unvested Shares upon cancellation and forfeiture pursuant to Section 4, Grantee hereby irrevocably appoints the Secretary of the Company or any other person designated by the Company (a) On the date hereof“Escrow Agent”), Buyer, each Seller and an as escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute as its attorney-in-fact to deliver unto the Company such unvested Shares, if any, forfeited to the Company and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereofupon execution of this Agreement, deliver to and deposit with the NET Escrow Agent Agent, the Purchased share certificates representing the unvested Shares. The Purchased unvested Shares shall be held by the Escrow Agent in escrow until such unvested Shares become vested, or until such time as this Agreement is no longer in effect. Upon vesting of the Closing Date at which time they will Shares, the Escrow Agent shall promptly deliver to Grantee the certificate or certificates representing such vested Shares in the Escrow Agent’s possession belonging to Grantee, and the Escrow Agent shall be delivered to Buyerdischarged of all further obligations hereunder; provided, however, that the Escrow Agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims other restrictions imposed pursuant to this Agreement. Other than Grantee hereby irrevocably authorizes and directs the Escrow Agent to transfer the unvested Shares which have been cancelled and forfeited to the Company. The Escrow Agent shall not be liable for Claims of fraud, any act it may do or omit to do with respect to holding the Indemnification Shares or, in escrow and while acting in good faith and in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment exercise of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateits judgment.

Appears in 1 contract

Samples: Restricted Stock Award Agreement (Sunstone Hotel Investors, Inc.)

Escrow. (a) On Simultaneously with the date execution hereof, Buyerthe Buyer or Acquisition is depositing with the Escrow Agent a number of shares of Buyer Preferred Stock equal to 10% of the Merger Consideration, each Seller and an as described in Section 1.3 hereof, including any amounts to be deposited into escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shallthe last sentence of Section 1.6(a) hereof (collectively, on the date hereof"Escrowed Shares"), deliver to for the NET Escrow Agent purpose of satisfying the Purchased Sharesindemnification obligations of the Stockholders set forth in Article VI of this Agreement. The Purchased Escrowed Shares shall be held in escrow until by the Closing Date at which time they will be delivered to Buyer, Escrow Agent under and pursuant to the terms of the NET an Escrow Agreement, in the form of Exhibit A, by and among the Buyer, the Escrow Agent, the Indemnification --------- Representative (each as defined herein) and each of the Stockholders (the "Escrow Agreement"). The Escrowed Shares shall remain in the Escrow for one (1) year following the Effective Time in order to satisfy the Stockholders' indemnification obligations under Article VI hereof. During such one (1) year period, all cash dividends, if any, paid with respect to the Escrowed Shares shall be the property of, and shall be delivered to, the Stockholders, each in accordance with their respective ownership interests, and each of the Stockholders shall have the sole power to exercise all voting rights pertaining to their pro rata portion of Escrowed Shares. All shares issued in respect of the Escrowed Shares (including, without limitation, shares issued in connection with stock dividends, stock splits, recapitalizations, reorganizations or similar transactions affecting the Buyer Preferred Stock) shall, upon issuance, be deposited in the Escrow, held subject to the terms and conditions of the Escrow Agreement and treated for all purposes as Escrowed Shares. (b) On The adoption of this Agreement and the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms approval of the Escrow Agreement). The Indemnification Shares Merger by the Stockholders shall be held for a period of twelve (12) months following constitute approval by the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms Stockholders of the Escrow Agreement shall be determined by averaging and the closing sales price appointment of Centura Bank as the escrow agent (the "Escrow Agent") thereunder and of all of the Parent Stock (orarrangements relating thereto, in case no reported sales take place on such dayincluding, without limitation, the average placement in escrow of the closing bid Escrowed Shares and ask prices on such daythe appointment of Xxxxxx & Xxxxxx Group, Inc., a New York corporation ("Xxxxxx"), to serve as the Indemnification Representative (the "Indemnification Representative") on to act as the Nasdaq SmallCap Market representative of the Stockholders for purposes of the five (5) consecutive trading days prior to the Closing DateEscrow Agreement and this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Sciquest Com Inc)

Escrow. (a) On Prior to the date hereofClosing, Buyerthe Representative, each Seller Parent and Merger Sub shall enter into an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") Escrow Agreement with the Escrow Agent substantially in the form of EXHIBIT 1.3A hereto Exhibit E, subject to any administrative changes as may be required by the Escrow Agent (the “Escrow Agreement”). Concurrently with the payment to the Exchange Agent pursuant to which Sellers shallSection 1.07(b), the Surviving Company shall deposit an amount of cash equal to the Escrow Amount (but only to the extent of the excess, if any, of (a) the Additional Consideration over (b) the sum of (1) the Additional Consideration Holdback Amount, (2) the Stockholder Tax Holdback Amount, (3) the Stockholder Tax Special Fund, (4) the Second Tier Aggregate Catch-Up Option Consideration, if any and (5) the Premium Amount, if applicable) with the Escrow Agent for use in connection with the Securityholders’ obligations pursuant to the indemnification provisions of this Agreement. Subject to Section 7.01(e) any Escrow Amount remaining on the date hereofGeneral Survival Termination Date (but in any event not before payment to the Exchange Agent is required to be made pursuant to Section 1.07(b)) shall be paid by the Escrow Agent (but in any event, not before the payment is made to the Exchange Agent pursuant Section 1.07(b)) (and Parent and the Representative shall cause the applicable Parent Authorized Person and Representative Authorized Person, respectively, promptly to deliver to the NET Escrow Agent a Joint Written Direction instructing the Purchased Escrow Agent to make such deliveries) (A) subject to Section 1.12 by delivering to the Exchange Agent, for the benefit of the Common Stockholders and Preferred Stockholders in respect of the shares of Company Stock held by them as of the Reference Time (other than Dissenting Shares. The Purchased Shares ), an amount equal to the product of (1) the portion of the Escrow Amount to be distributed multiplied by (2) the Stockholder Percentage, and the Exchange Agent shall distribute to each such Common Stockholder and Preferred Stockholder (other than holders of Dissenting Shares) its Pro Rata Stock Percentage of the portion of the Escrow Amount so distributed, and (B) by delivering to the Surviving Company for the benefit of the holders of In-the-Money Options and Restricted Stock Units in respect of In-the-Money Options and Restricted Stock Units held by them as of the Reference Time, an amount equal to the product of (1) the portion of the Escrow Amount to be distributed, multiplied by (2) the Award Holder Percentage, less the aggregate applicable Forfeited Amounts, with the Surviving Company to distribute to each such holder of such In-the-Money Options or Restricted Stock Units its Pro Rata Award Percentage of the portion of the Escrow Amount so distributed (less any applicable Forfeited Amounts) through the Surviving Company’s payroll system on the next normal payroll date of the Surviving Company, on or as promptly as practicable after the General Survival Termination Date; provided, however, that to the extent a Parent Indemnified Party has delivered an Indemnification Notice in respect of any claim(s) as of the General Survival Termination Date that has not yet been resolved, the amount of any and all such unresolved claims shall continue to be held in escrow back by the Escrow Agent until the Closing Date at which time they will be delivered to Buyer, final resolution of any such unresolved claim pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, Upon the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment final resolution of any Losses for which Buyer may be entitled to indemnification as such unresolved claim after the General Survival Termination Date, (a) if and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer such claim is resolved such that a Parent Indemnified Party is owed indemnification by the Securityholders pursuant to the terms of this Agreement, Parent and the Representative shall cause the applicable Parent Authorized Person and Representative Authorized Person, respectively, promptly to deliver to the Escrow Agreement Agent a Joint Written Direction instructing the Escrow Agent to distribute to the applicable Parent Indemnified Party that portion of the Escrow Amount and (b) if and to the extent any such claim is resolved such that the applicable Parent Indemnified Party is not entitled to indemnification from the Securityholders pursuant to the terms of this Agreement, the portion of the Escrow Amount relating to such claim (or the portion of such claim for which the applicable Parent Indemnified Party is not entitled to indemnification) shall be determined by averaging released (but only to the closing sales price extent that the amount of funds remaining in the escrow account would otherwise exceed the aggregate amount of all unresolved claims) and Parent and the Representative shall cause the applicable Parent Authorized Person and Representative Authorized Person, respectively, promptly to deliver to the Escrow Agent a Joint Written Direction instructing the Escrow Agent to (A) subject to Section 1.12 deliver to the Exchange Agent, for the benefit of the Parent Stock (or, Common Stockholders and Preferred Stockholders in case no reported sales take place on such day, the average respect of the closing bid shares of Company Stock held by them as of the Reference Time (other than Dissenting Shares), an amount equal to the product of (1) the portion of the Escrow Amount to be distributed multiplied by (2) the Stockholder Percentage, and ask prices on the Exchange Agent shall distribute to each such dayCommon Stockholder and Preferred Stockholder (other than holders of Dissenting Shares) its Pro Rata Stock Percentage of the portion of the Escrow Amount so distributed, and (B) deliver to the Surviving Company for the benefit of the holders of In-the-Money Options and Restricted Stock Units in respect of In-the-Money Options and Restricted Stock Units held by them as of the Reference Time, an amount equal to the product of (1) the portion of the Escrow Amount to be distributed, multiplied by (2) the Award Holder Percentage, less the aggregate applicable Forfeited Amounts, with the Surviving Company to distribute to each such holder of such In-the-Money Options or Restricted Stock Units its Pro Rata Award Percentage of the portion of the Escrow Amount so distributed (less any applicable Forfeited Amounts) through the Surviving Company’s payroll system on the Nasdaq SmallCap Market for next normal payroll date of the five (5) consecutive trading days prior to the Closing DateSurviving Company.

Appears in 1 contract

Samples: Merger Agreement (Harman International Industries Inc /De/)

Escrow. (a) On a. The Escrow Agent is hereby authorized and directed to invest the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") Escrowed Funds in the form Xxxxxxxxxxx Xxxxx & Xxxxxxxx Savings Trust Account, or in such other obligations as are specified in written instructions signed by or on behalf of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on Aetrium and the date hereof, deliver to Xxxxxxxx Representative. b. Upon receipt by the NET Escrow Agent on or after December 31, 2001 and on or prior to January 31, 2002 of written notice from Aetrium that Aetrium has exercised the Purchased Shares. The Purchased Shares shall be held in escrow until Put Options, which notice will include wire transfer instructions, the Closing Date at which time they Escrow Agent will be delivered promptly wire transfer to Buyer, pursuant to Aetrium the terms Escrowed Funds and all income then earned thereon. c. In the event the Escrow Agent receives no such notice from Aetrium of exercise of the NET Escrow Agreement. (b) On Put Options, then upon receipt by the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent on or after February 1, 2002 of written notice from the number Xxxxxxxx Representative requesting disbursement of Transaction Shares determined the Escrowed Funds, which notice will include wire transfer instructions, the Escrow Agent will promptly wire transfer the Escrowed Funds and all income then earned thereon in accordance with such instructions. d. The duties and obligations of the Escrow Agent will be determined solely by the express provisions of this Section 1.28 and the Escrow Agent will not be liable except for the performance of such duties and obligations as are specifically set forth in this Section. The Escrow Shares shall Agent will not be held responsible in escrow until December 31any manner whatsoever for any failure or inability of Aetrium or the Xxxxxxxx Representative or of anyone else to perform or comply with any of the provisions of this Section or any other agreement. The Escrow Agent will not be bound by any modification, 1998 (subject cancellation or rescission of the provisions of this Section unless in writing and signed by it, Aetrium and the Xxxxxxxx Representative . e. In the performance of its duties hereunder, the Escrow Agent will be entitled to rely upon any document, instrument or signature believed by it to be genuine and signed by either of Aetrium, the Xxxxxxxx Representative or their successors. The successor of either such party will be as set forth in a signature certificate delivered to the terms Escrow Agent, in form satisfactory to the Escrow Agent. The Escrow Agent may assume that any person purporting to give any notice of instructions in accordance with the provisions hereof has been duly authorized to do so. f. The Escrow Agent will not be liable for any error in judgment, or any action taken or omitted to be taken hereunder, including without limitation, for any loss or tax consequence resulting from any investment or any sale of any investment made hereunder, except in the case of its bad faith, willful misconduct or its own gross negligence. The Escrow Agent will be entitled to consult with counsel of its choosing and will not be liable for any action taken or omitted by it in accordance with the advice of such counsel. If the Escrow Agent is uncertain as to its duties or rights hereunder, or is of the opinion that there is a dispute hereunder, or is of the opinion that there is a dispute between Aetrium and the Xxxxxxxx Members arising out of or in connection with this Escrow Agreement, or receives instructions from Aetrium or the Xxxxxxxx Representative with respect to the Escrowed Funds which, in its opinion, are in conflict with any of the provisions of this Section, the Escrow Agent will be entitled to refrain from taking any action until such time as there has been a final determination of the rights of Aetrium and the Xxxxxxxx Members with respect to the Escrowed Funds, or deposit the Escrowed Funds and all income earned thereon with any court of competent jurisdiction pending the final determination of any dispute among such parties. g. The Escrow Agent will not be under any obligation to take any legal action in connection with this Section 8 or for its enforcement or to appear in, prosecute or defend any action or legal proceeding which, in its opinion, would or might involve it in any cost, expense, loss or liability, unless, and as often as required by it, it is furnished with security and indemnity satisfactory to it against all such costs, expenses, losses or liability. h. The Escrow Agent or any successor to it as escrow agent hereafter appointed may at any time resign and be discharged of the duties imposed hereunder by giving notice to Aetrium and the Xxxxxxxx Representative, such resignation to take effect upon the earlier of the appointment of a successor escrow agent by Aetrium and the Xxxxxxxx Representative, or ninety (90) days after the giving of such notice (provided that prior to the expiration of such 90-day period, the Escrow Agent has deposited the Escrowed Funds and all income earned thereon with the office of the clerk of the court of any court of competent jurisdiction). i. Aetrium will reimburse the Escrow Agent for out-of-pocket expenses, including without limitation legal fees, postage, wire-transfer charges, disbursements and advances, incurred or made by the Escrow Agent hereunder. Aetrium will indemnify the Escrow Agent and hold it harmless from any and all loss, liability, costs or expenses (including reasonable attorneys’ fees) incurred without bad faith, willful misconduct or negligence on the part of the Escrow Agreement). The Indemnification Shares shall be held for a period Agent and arising out of twelve (12) months following or in connection with its acceptance of or the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims performance of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with its duties and obligations under this Section 1.3(b)8, shall be Buyer's sole remedy for which indemnification obligation will survive the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms resignation of the Escrow Agreement shall be determined by averaging Agent or the closing sales price termination of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior this Section 8. Any amount owing hereunder to the Closing DateEscrow Agent may be charged to and paid from the Escrowed Funds.

Appears in 1 contract

Samples: Shareholder Agreement (Aetrium Inc)

Escrow. Immediately upon receipt of the proceeds of the Varian Sale, the Company will wire into the client trust account of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. (a"WSGR"), the sum of $4,725,000 (the "Redemption Amount"). Each Purchaser agrees to deliver all certificates representing the Series A Shares (the "Series A Certificates") On the date hereofheld by it, Buyerduly endorsed for transfer, each Seller and an to WSGR, which will act as escrow agent selected (in such capacity, "Escrow Agent"), not later than the business day after receipt by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form such Purchaser of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET notice from Escrow Agent that Escrow Agent has received the Purchased SharesRedemption Amount in its client trust account. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms Upon tender of all of the NET Series A Certificates for redemption and receipt of written direction from each Purchaser (or such Purchaser's representative), Escrow Agreement. (b) On Agent will cause the Closing Date, Buyer, applicable Redemption Price to be wired to each Seller and an escrow agent selected Purchaser according to wire instructions provided by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver each such Purchaser to Escrow Agent and the number of Transaction Shares determined in accordance with Section 1.2--------------- (*)Southbrook previously converted 2,000 shares. The Redemption will be deemed completed. If Escrow Shares shall be held in escrow until December Agent does not receive the Redemption Amount by July 31, 1998 (subject 1998, a majority in interest of the Purchasers shall have the right to terminate this Agreement by notice to the terms Company and to Escrow Agent and in such case Escrow Agent will return the Redemption Amount to the Company and the Series A Certificates to the Purchasers. If Escrow Agent has received the Redemption Amount, but one or more of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following Purchasers has not tendered its Series A Certificate to the Closing DateCompany by July 31, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud1998, the Indemnification Company shall have the right to either except the tendered Series A Shares or, in the event such shares are sold, the value thereof as determined in accordance with for redemption or terminate this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and Agreement by notice to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to Escrow Agent and the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DatePurchasers.

Appears in 1 contract

Samples: Redemption and Exchange Agreement (Genus Inc)

Escrow. Notwithstanding any provision of this Agreement to the contrary, in lieu of delivering to holders of shares of Company Capital Stock certificates for the full number of shares of Parent Common Stock provided for in Section 2.7, Parent shall deliver or cause to be delivered (aA) On to each such holder one or more certificates, registered in the date hereofname of such holder (subject to Section 2.8(e)), Buyer, each Seller for a number of shares of Parent Common Stock equal to 90% of the aggregate number of shares of Parent Common Stock otherwise issuable to such holder pursuant to Section 2.7; and an (B) to State Street Bank and Trust Company as escrow agent selected by Buyer and Sellers (the "NET ESCROW AGENTEscrow Agent") shall execute and deliver an for deposit into the escrow fund (the "Escrow Fund") provided for in the escrow agreement ("NET ESCROW AGREEMENT") in the form attached as Exhibit 2.8 hereto (the "Escrow Agreement"), to secure the indemnity obligations under Section 10.2, one or more certificates, registered in the name of EXHIBIT 1.3A hereto the Escrow Agent, for a number of shares of Parent Common Stock equal to the Escrow Amount out of the aggregate number of shares of Parent Common Stock otherwise issuable pursuant to which Sellers shall, on Section 2.7 upon conversion of all of the date hereof, deliver shares of Company Capital Stock issued and outstanding immediately prior to the NET Effective Time, all of which will be held as part of the Escrow Fund and disposed of by the Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms provisions of the Escrow Agreement). Such shares shall be beneficially owned by the holders on whose behalf such shares were deposited in the Escrow Fund and shall be available to compensate the Parent Indemnitees as provided in Article 10. The Indemnification Shares Escrow Agreement is incorporated herein by reference and shall be held for a period considered part of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than By voting for Claims or failing to dissent from the approval of fraudthis Agreement, each Company Stockholder automatically and without any further act or deed irrevocably agrees that: (A) such Company Stockholder accepts and shall be bound by the Indemnification Shares orterms and provisions of the Escrow Agreement; and (B) Xxxxx Xxxxxxxxx is appointed Stockholder Representative (the "Stockholder Representative") for purposes of the Escrow Agreement with all rights, powers and authority provided for in the event such shares are sold, Escrow Agreement and that any action taken by the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer Stockholder Representative pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (orconclusive, in case no reported sales take place on valid, binding and enforceable with respect to each such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateCompany Stockholder.

Appears in 1 contract

Samples: Merger Agreement (Atmi Inc)

Escrow. As security for an Employee Shareholder's or a Restricted Stock Grant Recipient's faithful performance of this Agreement, that Employee Shareholder or Restricted Stock Grant Recipient agrees, immediately upon receipt of the stock certificate(s) evidencing the Omneon Shares, to deliver such certificate(s), together with the Stock Powers and Spouse Consents executed by that Employee Shareholder or Restricted Stock Grant Recipient and by that Employee Shareholder's or Restricted Stock Grant Recipient's spouse, if any (a) On with the date hereofdate, Buyertransferee, each Seller stock certificate number and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") number of Omneon Shares left blank), in the form forms of EXHIBIT 1.3A hereto pursuant to which Sellers shallExhibit G and H hereto, on the date hereof, deliver to the NET Secretary of Omneon or other designee of Omneon (the "Escrow Agent the Purchased Shares. The Purchased Shares shall be held Holder"), who is hereby appointed to hold such certificate(s) and Stock Powers in escrow until the Closing Date at which time they will be delivered and to Buyer, pursuant take all such actions and to effectuate all such transfers and/or releases of such Omneon Shares as are in accordance with the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than Escrow Holder will act solely for Claims Omneon as its agent and not as a fiduciary. Each Employee Shareholder, each Restricted Stock Grant Recipient and Omneon agree that Escrow Holder will not be liable to any party to this Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of fraudEscrow Holder under this Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment advice of counsel and obey any order of any Losses for which Buyer may be entitled to indemnification as and court with respect to the extent provided in Article VI hereoftransactions contemplated by this Agreement. The value of any Indemnification Omneon Shares paid to Buyer pursuant to the terms will be released from escrow upon termination of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateForfeiture Contingency.

Appears in 1 contract

Samples: Share Contribution Agreement (Omneon, Inc.)

Escrow. (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares13.01. The Purchased Shares Deposit shall be held in escrow by Escrow Agent in an interest bearing account until disbursed as herein provided. Any interest accrued on the Deposit shall be paid to whichever party is entitled to the Deposit in accordance with the provisions of this Agreement. The interest earned on the Deposit shall at Purchaser’s election either be credited against the Purchase Price or paid to Purchaser at Closing. The Deposit shall be held and disbursed by Escrow Agent in the following manner: (a) to Seller at the Closing Date at which time they will be delivered to Buyer, pursuant to the terms upon consummation of the NET Escrow Agreement.Closing; or (b) On to Seller upon receipt by Escrow Agent of written demand therefor stating that Purchaser has failed to consummate the Closing Datetransactions contemplated by this Agreement in accordance with the provisions of Section 12.01 herein; provided, Buyerhowever, each that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of Section 13.02; or (c) to Purchaser upon receipt of written demand therefor, stating that either (i) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination and that Purchaser is entitled to the Deposit pursuant to the provisions of this Agreement, or (ii) Seller has failed to consummate the transactions contemplated by this Agreement in accordance with the provisions of Section 12.02 herein or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that after the expiration of the Due Diligence Period, Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of Section 13.02. If Purchaser elects to terminate this Agreement prior to the expiration of the Due Diligence Period, then Escrow Agent shall pay the entire Deposit to Purchaser as soon as practicable following receipt of the demand therefor from Purchaser, and an escrow agent selected this Agreement shall thereupon terminate. Notwithstanding anything to the contrary contained herein, no notice from Escrow Agent to Seller shall be required as a condition precedent for or in connection with the release of the entire Deposit to Purchaser by Buyer Escrow Agent on or prior to the expiration of the Due Diligence Period and Sellers ("ESCROW AGENT") Escrow Agent shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially release such funds to Purchaser even if Seller objects thereto but Escrow Agent shall nonetheless promptly notify Seller upon any such release. 13.02. Except as provided in the form last two sentences of EXHIBIT 1.3B hereto Section 13.01(c), upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to which Buyer clause (b) or (c) of Section 13.01, Escrow Agent shall, within two business days, send a copy thereof to the other party. The other party shall deliver have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within the number greater of Transaction Shares determined in accordance with Section 1.2. The five (5) days or three (3) business days after Escrow Shares shall be held in escrow until December 31, 1998 (subject Agent delivers a copy of the written demand to the terms objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow AgreementAgent shall promptly send a copy thereof to the party who made the written demand. 13.03. Except as provided in the last two sentences of Section 13.01(c). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event of any dispute between the parties regarding the Deposit, Escrow Agent shall disregard all instructions received and at its option either (i) hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of said resolution in writing by both Seller and Purchaser, or Escrow Agent is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of such shares are solddeposit). 13.04. Except as provided in the last two sentences of Section 13.01(c), in the value thereof event Escrow Agent shall be uncertain as determined to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction. 13.05. Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Article 13 shall be signed by Escrow Agent, Purchaser and Seller. 13.06. Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with this Section 1.3(b)the opinion of such counsel; provided, that the prevailing party in any dispute hereunder shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as recover such costs from the other party. 13.07. Escrow Agent may resign at will and to the extent provided be discharged from its duties or obligations hereunder by giving notice in Article VI hereof. The value writing of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement such resignation specifying a date when such resignation shall be determined by averaging the closing sales price of the Parent Stock take effect; provided, however, that (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such dayi) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to such resignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Closing DateDeposit with a court of competent jurisdiction. After such resignation, Escrow Agent shall have no further duties or liability hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)

Escrow. The Purchaser and Sellers, prior to Closing, will retain the Escrow Agent and will negotiate in good faith the terms and conditions of an Escrow Agreement using a form acceptable to the Escrow Agent; provided, however, that the Escrow Agreement must include the release conditions set forth in subsections (a), (b) and (c) below, and provided further that Purchaser will be solely responsible for the standard fees of the Escrow Agent, but with Purchaser and Sellers' Representative equally sharing any additional costs and expenses incurred by the Escrow Agent. In that regard, the Purchaser and Sellers agree that: (a) On the date hereofEscrow Agreement will provide that, Buyeron the eighteen (18) month anniversary of the Closing Date, the Escrow Agent will deliver and pay over to the Sellers an amount equal to each Seller Seller's pro-rata portion (to be determined based on each Seller's ownership percentage set forth on the Fully-Diluted Cap Table) of the Deductible, reduced by the sum of (i) any applicable withholding tax, (ii) the amount of any indemnification claims that have been paid by the Escrow Agent plus, and an escrow agent selected (iii) the amount of any indemnification claims previously made by Buyer and Sellers any Purchaser Indemnified Person which have not been fully resolved; ("NET ESCROW AGENT"b) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shallEscrow Agreement will provide that on the third anniversary or, if later, on the date hereof, deliver as of which no Tax periods prior to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until or including the Closing Date at are subject to an open Tax audit by any Governmental Body, the balance of the Escrow Amount reduced by (i) any applicable withholding tax, and (ii) the amount of any indemnification claims by any Purchaser Indemnified Person which time they have not been finally resolved, will be delivered to Buyer, pursuant and paid over to the terms Sellers, who shall be entitled to receive an amount equal to each Seller's pro-rata portion (to be determined based on each Seller's ownership percentage set forth on the Fully-Diluted Cap Table) of the NET Escrow Agreementsuch balance. (bc) On the Closing DateEscrow Agreement will provide for cross-notices to the parties of any disbursement notices to the Escrow Agent, Buyer, each Seller and an escrow agent selected by Buyer the Escrow Agreement will be terminated when all unresolved indemnification claims have been finally resolved and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined otherwise in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve ; and (12d) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall will provide that the Escrow Amount will be determined by averaging the closing sales price of the Parent Stock (or, held at all time in case no reported sales take place on such day, the average of the closing bid an interest-bearing escrow account at a major financial institution acceptable to Purchaser and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateSellers' Representative.

Appears in 1 contract

Samples: Share Purchase Agreement (Greatbatch, Inc.)

Escrow. The following terms shall apply to the Escrow Amount: (ai) If, prior to final release of the Escrow Amount to the Stockholder, the Stockholders become finally obligated to make payments in respect of any Damages pursuant to this Article VII and such obligation is not in dispute, then, subject to the provisions of this Section 7.5, Flotek and the Stockholders’ Representative shall promptly (but in any event within five Business Days of such obligation arising (or, if later, ceasing to be in dispute)) issue joint written instructions to the Escrow Agent instructing the Escrow Agent to release the amount pursuant to such obligation (up to a maximum amount equal to the Escrow Amount then on deposit in the Escrow Account) from the Escrow Account to the Flotek Indemnified Party within three (3) Business Days of receipt of such joint written instructions. (ii) To the extent the Stockholders are obligated to make payments in respect of any Damages pursuant to this Article VII, such Damages shall be satisfied first by the release to the Flotek Indemnified Party from the Escrow Account of the amount payable by the Stockholders, fifty percent (50%) in cash and fifty percent (50%) in Flotek Shares, with Flotek Shares valued for such purpose at the Closing Stock Value. To the extent the Escrow Amount then on deposit in the Escrow Account is insufficient to fully satisfy any such Indemnified Amount, then, subject to the provisions of this Section 7.5, any remaining payments that the Stockholders are obligated to make shall be payable directly by the Stockholders pursuant to Section 7.2. (iii) On the Escrow Interim Release Date, Flotek and the Stockholders’ Representative shall issue joint written instructions to the Escrow Agent instructing the Escrow Agent to release to the Stockholders from the Escrow Account within three Business Days of receipt of such joint written instructions $5,000,000 minus (A) the amount, if any, of such Escrow Amount that the Escrow Agent has released in accordance with this Agreement and the Escrow Agreement as of such date, (B) the amount, if any, of such Escrow Amount that the Escrow Agent has been instructed to release in accordance with this Agreement and the Escrow Agreement but has not actually released as of such date hereofand (C) if any Flotek Indemnified Party has on or prior to such date asserted in good faith a Claim with respect to any Damages, Buyera reasonable reserve amount (as determined by Flotek). Any amounts released pursuant to this Section 7.5(iii) shall be released in the form of 50% cash (among the Stockholders pro rata in proportion to the total amount of cash to be received by each of them under Section 3.1(a) above) and 50% Flotek Shares (among the Stockholders pro rata in proportion to the total number of Flotek Shares to be received by each of them under Section 3.1(a) above), based on a valuation of the Flotek Shares at the Closing Stock Value. (iv) On the Escrow Final Release Date, Flotek and the Stockholders’ Representative shall issue joint written instructions to the Escrow Agent instructing the Escrow Agent to release to the Stockholders from the Escrow Account within three Business Days of receipt of such joint written instructions (A) the Escrow Amount then on deposit in the Escrow Account, if any, minus (B)(1) the amount, if any, of such Escrow Amount that the Escrow Agent has been instructed to release in accordance with this Agreement and the Escrow Agreement but has not actually released as of such date and (2) if any Flotek Indemnified Party has on or prior to such date asserted in good faith a Claim with respect to any Damages, a reasonable reserve amount (as determined by Flotek). The cash to be released under this Section 7.5(iv) shall be distributed among the Stockholders pro rata in proportion to the total amount of cash to be received by each Seller of them under Section 3.1(a) above) and an escrow agent selected the Flotek Shares to be released under this Section 7.5(iv) shall be distributed among the Stockholders pro rata in proportion to the total number of Flotek Shares to be received by Buyer each of them under Section 3.1(a) above). (v) Following resolution from time to time of any Claim for which a reserve of a portion of the Escrow Amount then on deposit was established as described in Sections 7.5(e)(iii), Flotek and Sellers ("NET ESCROW AGENT") the Stockholders’ Representative shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent joint written instructions instructing the Purchased Shares. The Purchased Shares shall be held in escrow until Escrow Agent to release such reserve amount from the Closing Date at which time they will be delivered to Buyer, pursuant Escrow Account to the terms Stockholders, the Flotek Indemnified Parties, or both, as appropriate for the resolution of the NET Escrow Agreementsuch Claim within three Business Days of receipt of such joint written instructions. (bvi) On If Flotek or the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") Stockholders’ Representative shall fail to timely execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudjoint written instructions when required hereunder, the Indemnification Shares orStockholders’ Representative or Flotek, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b)respectively, shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification seek an order, judgment or decision that will enable the Escrow Agent to distribute to the Stockholders or the Flotek Indemnified Party, as applicable, the Escrow Amount to which it is entitled and to seek Damages from Flotek or the extent provided in Article VI hereof. The value Stockholders, as applicable, as a result of any Indemnification Shares paid such failure to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datecomply herewith.

Appears in 1 contract

Samples: Merger Agreement (Flotek Industries Inc/Cn/)

Escrow. (a) On the date hereofClosing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent (as defined in the Purchased SharesEscrow Agreement attached as Exhibit A hereto) a certificate (issued in the name of the Escrow Agent or its nominee) representing (i) the Escrow Shares for the purpose of satisfying the indemnification obligations set forth in Section 8.1 of this Agreement and the purchase price adjustment provisions set forth in Section 1C.1(h) of this Agreement, (ii) the Escrowed Severance Shares for the purpose of satisfying the provisions set forth in Section 1C.1(i) of this Agreement, and (iii) the Reimbursement Shares for the purpose of reimbursing the expenses of the Indemnification Representative in accordance with the terms of the Escrow Agreement. The Purchased Escrow Shares, the Escrowed Severance Shares and the Reimbursement Shares shall be held in escrow until by the Closing Date at which time they will be delivered to Buyer, Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Shares, the Escrowed Severance Shares and the Reimbursement Shares together shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for the purposes and in accordance with the terms of the NET Escrow Agreement. (b) On The adoption and approval of this Agreement and the Closing Date, Buyer, each Seller and an escrow agent selected Transactions by Buyer and Sellers ("ESCROW AGENT") the Company Stockholders shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms constitute approval of the Escrow Agreement shall be determined by averaging the closing sales price and of all of the Parent Stock (orarrangements relating thereto, in case no reported sales take place on such dayincluding without limitation the placement of the Escrow Shares, the average Escrowed Severance Shares and the Reimbursement Shares in escrow and the appointment of the closing bid Indemnification Representative (as defined in the Escrow Agreement and ask prices on such dayas designated in Section 1C.3(a) on hereof). The Company agrees to describe and disclose the Nasdaq SmallCap Market for the five (5) consecutive trading days prior arrangements contemplated by this Section 1A.5 as required under applicable law to the Closing DateCompany Stockholders in connection with the pursuit of such Company Stockholders’ approval and adoption of this Agreement and the Merger.

Appears in 1 contract

Samples: Merger Agreement (Inverness Medical Innovations Inc)

Escrow. As security for the faithful performance of the terms of this Agreement, and to ensure the availability for delivery of the Shares, the Shareholder hereby pledges and will deliver within 10 business days of the date hereof for deposit with the Secretary of the Company, or such other person designated by the Company, as escrow agent in this transaction (“Escrow Agent”), a stock assignment duly endorsed (with date and number of shares blank) in substantially the form attached hereto as Exhibit A, together with the certificate or certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of the Company and the Shareholder. (a) On In the date hereofevent that the Company is required to issue a number of shares of Common Stock in excess of the Limit to effect the conversion of the outstanding shares of the Series C Preferred Stock as contemplated by the Certificate of Designations, Buyer, each Seller the Shareholder and an escrow agent selected by Buyer the Company hereby irrevocably authorize and Sellers ("NET ESCROW AGENT") shall execute direct the Escrow Agent to transfer and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered Company, with respect to Buyer, each conversion of Series C Preferred Stock effected pursuant to the terms Certificate of Designations, that number of Shares equal to the number of shares of Common Stock issuable upon such conversion of Series C Preferred Stock in excess of the NET Escrow AgreementLimit up to a aggregate maximum of 2,000,000 Shares. (b) On In connection with such transfer, the Closing DateEscrow Agent is directed to (i) date the stock assignment necessary for the transfer in question, Buyer(ii) fill in the number of Shares necessary to be transferred, each Seller and an escrow (iii) deliver such assignment, together with the certificate or certificates evidencing the Shares to be transferred, to the Company. (c) The Shareholder irrevocably authorizes the Company to deposit with the Escrow Agent any certificates evidencing the Shares to be held by the Escrow Agent hereunder and any additions and substitutions to said Shares as defined herein. The Shareholder irrevocably constitutes and appoints the Escrow Agent as the Shareholder’s attorney-in-fact and agent selected by Buyer and Sellers ("ESCROW AGENT") shall for the term of this Agreement to execute and deliver an escrow agreement all instruments and documents and do such other acts and things as may be necessary and appropriate to effectuate this Agreement and to complete any transaction contemplated herein. ("ESCROW AGREEMENT"d) substantially Following the earlier to occur of (i) the Mandatory Conversion Date (as defined in the form Certificate of EXHIBIT 1.3B hereto Designation), and (ii) such time as there are no shares of Series C Preferred Stock outstanding, the Escrow Agent is directed to deliver any Shares not transferred to the Company pursuant to which Buyer Section 1(b) and Section 4(a) above to the Shareholder within 15 days of such event. If at the time of termination of this Agreement, the Escrow Agent has in the Escrow Agent’s possession any documents, securities, or other property belonging to the Shareholder, the Escrow Agent shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject such property to the terms Shareholder and be discharged of all further obligations hereunder. (e) The responsibilities of the Escrow Agreement)Agent hereunder shall terminate if the Escrow Agent shall cease to be Secretary of the Company or if the Escrow Agent shall resign by written notice to each party. The Indemnification Shares In the event of any such termination or resignation, the Company shall appoint a successor Escrow Agent. In the absence of such appointment, the Chief Executive Officer of the Company shall be the Escrow Agent. (f) It is understood and agreed that should any dispute arise with respect to the delivery, ownership, or right of possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part of said Shares until such disputes shall have been settled either by mutual written agreement of the Company and the Shareholder or by a final order, decree, or judgment of the arbitrator, if applicable, or of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend such proceedings. (g) By signing this Agreement, the Escrow Agent becomes a period party hereto only for the purpose of twelve (12) months following executing the Closing Date, unless disbursed earlier to Buyer for Claims pursuant instructions set forth in this Section 4 and does not otherwise become a party to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Share Contribution Agreement (Raser Technologies Inc)

Escrow. (aFor purposes of facilitating the enforcement of the provisions ------ of Section 1(a) On above, the date hereofStockholder agrees to deliver the certificate(s) for the Shares, Buyer, each Seller and together with an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") Assignment Separate from Certificate in the form of EXHIBIT 1.3A hereto pursuant attached to which Sellers shallthis Agreement as Attachment A executed by the Stockholder and by ------------ the Stockholder's spouse (if required for transfer), on the date hereofin blank, deliver to the NET Escrow Agent Secretary of the Purchased SharesCompany, or the Secretary's designee, to hold such certificate(s) and Assignment Separate from Certificate in escrow and to take all such actions and to effectuate all such transfers and/or releases as are required in accordance with the terms of this Agreement. The Purchased Shares Stockholder hereby acknowledges that the Secretary of the Company, or the Secretary's designee, is so appointed as the escrow holder with the foregoing authorities as a material inducement to make this Agreement and that said appointment is coupled with an interest and is accordingly irrevocable. The Stockholder agrees that said escrow holder shall not be held in liable to any party hereof (or to any other party). The escrow until holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. The Stockholder agrees that if the Closing Date at which time they will be delivered Secretary of the Company, or the Secretary's designee, resigns as escrow holder for any or no reason, the Board of Directors of the Company shall have the power to Buyer, appoint a successor to serve as escrow holder pursuant to the terms of this Agreement. Upon release of any Shares from the NET repurchase option pursuant to this agreement, the escrow holder shall deliver (a) ninety percent (90%) of such released shares (i) if such release occurs prior to July 1, 2000, to the Escrow Agreement. Agent holding shares pursuant to the Lock-Up Escrow Agreement to be executed among Company, Target, Escrow Agent, and Stockholders' Agents to be held or distributed in accordance with the terms thereof, and (ii) if such release occurs after June 30, 2000, to the Stockholder; and (b) On ten percent (10%) of such released shares (i) if such release occurs prior to the Closing Daterelease of escrowed shares under section 2(d) of the Indemnity Escrow Agreement to be executed among Company, BuyerTarget, each Seller Escrow Agent, and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant Stockholders' Agents to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined be held or distributed in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31the terms thereof, 1998 and (subject ii) if such release occurs after such date, to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateStockholder.

Appears in 1 contract

Samples: Stock Restriction Agreement (Chemdex Corp)

Escrow. (a) On At the date Closing, as provided in Section 2.3(c) hereof, BuyerBuyer shall deliver, each Seller and by wire transfer of immediately available funds, (i) an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver aggregate amount equal to the NET Adjustment Escrow Deposit Amount to the Escrow Agent for deposit into a separate escrow account (the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant “Adjustment Escrow Account”) and (ii) an aggregate amount equal to the terms of Indemnity Escrow Deposit Amount to the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent for deposit into a separate escrow account (the number of Transaction Shares determined “Indemnity Escrow Account”), in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31each case, 1998 (subject established pursuant to the terms of the Escrow Agreement). The Indemnification Shares Adjustment Escrow Funds shall be maintained separately in the Adjustment Escrow Account. The Indemnity Escrow Funds shall be maintained separately in the Indemnity Escrow Account. Buyer and the Seller shall each be responsible for one half (1/2) of the fees and expenses of the Escrow Agent. Subject to the limitations set forth in this Agreement, nothing in this Section 2.6 shall be construed as limiting claims by a Buyer Indemnified Person for satisfaction of any indemnification or other claims pursuant to Section 8.2 or otherwise, to the amount then held in escrow. (b) Seller, the Company, and Buyer agree for a period all Tax purposes that: (i) the right of Seller to the Adjustment Escrow Amount and the Indemnity Escrow Amount shall be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provisions of state, local or non-U.S. Law, as appropriate; (ii) interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; (iii) Buyer shall be treated as the owner of the Adjustment Escrow Amount and the Indemnity Escrow Amount and all interest and earnings earned from the investment and reinvestment of the Adjustment Escrow Amount and the Indemnity Escrow Amount, or portion thereof, shall be allocable to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation 1.468B-8; and (iv) in no event shall the total amount of the Adjustment Escrow Amount or the Indemnity Escrow Amount paid to Seller under this Agreement exceed an amount designated by the Parties prior to Closing. (c) On the third (3rd) Business Day after the twelve (12) months following 12)-month anniversary of the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, and Seller shall cause the Indemnification Shares or, in the event such shares are sold, the value thereof as determined Escrow Agent (in accordance with this Section 1.3(b)the terms of the Escrow Agreement) to pay (by wire transfer of immediately available funds) to such account(s) designated by Seller, shall be Buyer's sole remedy for the payment amount of any Losses remaining Indemnity Escrow Funds that are not claimed by Buyer, on or prior to the twelve (12)-month anniversary of the Closing Date, to be owed to a Buyer Indemnified Person, together with any interest earned on any such amount, for which Buyer distribution to Seller, all as may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer and pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateAgreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Caleres Inc)

Escrow. (a) On At the date hereofClosing, Buyer, the Purchaser will withhold 950,000 of the Exchange Shares to be issued to each Seller Corporation Stockholder in accordance with Section 2.6(a) (rounded down to the nearest whole number of shares to be issued to such Corporation Stockholder) and an escrow agent selected by Buyer and Sellers deliver such shares (the "NET ESCROW AGENTEscrow Shares") shall execute to Borden Ladner Gervais LLP (the "Escrow Agent"), as escrow xxxxx, xx xx xxxx xx Escrow Agent as collateral for the Corporation's indemnification obligations under Article 10 and deliver pursuant to the provisions of an escrow agreement (the "NET ESCROW AGREEMENTEscrow Agreement") in a form to be mutually agreed by the form of EXHIBIT 1.3A parties hereto pursuant prior to which Sellers shallClosing and, on the date hereofupon such agreement, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreementattached hereto as Exhibit 2.7. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject Subject to the terms of the Escrow Agreement, the Escrow Shares will be held by the Escrow Agent from the Closing until the dates set forth in the Escrow Agreement (the "Escrow Period"). The Indemnification Any shares of Purchaser Common Stock or other equity securities issued or distributed by the Purchaser (including securities issued upon a Capital Change) with respect to the Escrow Shares in the Escrow Period shall be added to and considered part of the Escrow Shares. Cash dividends on the Escrow Shares shall be held for a period of twelve (12) months following deposited with the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value Escrow Agent until release thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms Escrow Agreement. The Escrow Shares withheld from each Corporation Stockholder will be represented by a certificate or certificates issued in the name of the Escrow Agreement Agent. Each Corporation Stockholder shall be determined shown as the record owner on the Purchaser's books and records of such number of Escrow Shares. (c) In the event that the Merger is approved by averaging the closing sales price Corporation Stockholders as provided herein, the Corporation Stockholders shall, without any further act of any Corporation Stockholder, be deemed to have consented to and approved (i) the use of the Parent Stock Escrow Shares as collateral for the Corporation's indemnification obligations under Article 10 in the manner set forth in Article 10 and the Escrow Agreement, (orii) the appointment of Bill McAleer as the representative of the Corporation Stoxxxxxxxxx (xhe "Stockholder Representative") with respect to the matters set forth in Article 10 and under the Escrow Agreement and as the attorney-in-fact and agent for and on behalf of each Corporation Stockholder (other than holders of Dissenting Shares), in case no reported sales take place on such dayand the taking by the Stockholder Representative of any and all actions and the making of any decisions required or permitted to be taken by him under the Escrow Agreement (including, without limitation, the average exercise of the closing bid power to: authorize delivery to the Purchaser of Escrow Shares in satisfaction of claims by the Purchaser; agree to, negotiate, enter into settlements and ask prices on compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such day) on claims; resolve any claim made pursuant to Article 10; and take all actions necessary in the Nasdaq SmallCap Market judgment of the Stockholder Representative for the five accomplishment of the foregoing) and (5iii) consecutive trading days prior to all of the Closing Dateother terms, conditions and limitations in the Escrow Agreement.

Appears in 1 contract

Samples: Merger Agreement (Workstream Inc)

Escrow. (ai) On Purchaser and the date hereofSellers hereby appoint the Escrow Agent to serve in such capacity hereunder. Simultaneously with the execution and delivery of this Agreement, BuyerPurchaser, each Seller and shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing the Purchase Price, to be paid to an escrow agent selected account of the Escrow Agent set forth on Exhibit A attached hereto (the aggregate amounts received being held in escrow by Buyer the Escrow Agent are referred to herein as the “Escrow Amount”). Simultaneously with the execution and delivery of this Agreement, Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, promptly deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held Debentures and at least five undated stock powers duly manually endorsed for transfer in escrow until blank (the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENTStock Powers") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer Company shall deliver to Escrow Agent the number New Debentures registered in the name of Transaction the Purchaser and the instructions to the Company’s transfer agent (Computershare) to deliver the Converted Shares determined pursuant to Section 1(b). The Escrow Agent shall hold the Escrow Amount, Debentures, New Debentures and Stock Powers in escrow in accordance with Section 1.21(g)(ii) and (iii) below. The Company expressly waivers and requirement that the stock powers contain any signature guarantee or other third-party evidence of authenticity, and agrees to accept the same from the Escrow Agent “as-is” as delivered to the Escrow Agent by the Sellers. (ii) The Escrow Agent shall hold the Escrow Amount, the Stock Powers, the Debentures and the New Debentures delivered to the Escrow Agent pursuant to Section 1(g)(i) of this Agreement, in escrow in accordance with and subject to this Agreement until the receipt of written instructions signed by the Sellers, the Purchaser and the Company that the conditions to the Closing have been satisfied (the "Release Instructions"). Upon receipt of the Release Instructions, the Escrow Agent shall release to Sellers that part of the Escrow Amount constituting the Purchase Price set forth opposite Sellers’ name on column (7) of the Securities Schedule attached hereto in accordance with written wire transfer instructions received from Sellers, and shall release to Purchaser the New Debenture. The Escrow Shares Agent shall be held deliver the Debentures to the Company and the Company will cancel the Purchased Debentures and re-issue certificates for the Remaining Debentures back to the Escrow Agent. Upon notice (the "Delivery Confirmation") from the Escrow Agent that the Escrow Amount, the Debentures, the New Debentures and the Stock Powers have been delivered to the Escrow Agent, the Purchaser together with the Sellers and the Company shall deliver the Release Instructions. If Purchaser fails to deliver the Release Instructions to the Escrow Agent within 3 business days after delivery by the Escrow Agent to Purchaser of the Delivery Confirmation, the Sellers may, at their option, direct the Escrow Agent to deliver to the Sellers the Stock Power and the Debentures and if the Sellers deliver such instruction, contemporaneously with the delivery of the foregoing to the Sellers, the Escrow Agent shall deliver to Purchaser the Escrow Amount. If the Sellers fail to deliver the Release Instructions to the Escrow Agent within 3 business days after the Escrow Agent has delivered the Delivery Confirmation to the Sellers, Purchaser may instruct the Escrow Agent to deliver to the Purchaser the Escrow Amount and if Purchaser delivers such instruction, contemporaneously with the delivery of the foregoing to Purchaser, the Escrow Agent shall deliver to the Sellers the Stock Power and the Debentures. (iii) Upon delivery of an Exercise Notice to the Sellers, the Purchaser shall deliver a copy of such notice to the Escrow Agent and deliver the Option Price for the Remaining Debenture covered by such Exercise Notice to the Escrow Agent in escrow until December 31United States Dollars in immediate available funds within three (3) business days following the Exercise Date. Upon receipt of an Exercise Notice, 1998 (the Escrow Agent shall submit the Remaining Debentures to the Company and the Company shall re-issue a certificate for the Remaining Debentures covered by the Exercise Notice registered in the name of the Purchaser, free and clear of any claim, pledge, charge, lien and any other encumbrance whatsoever, and re-issue the balance of the Remaining Debentures, if any, in the name of the Sellers. Upon receipt by the Escrow Agent of the Remaining Debentures subject to the Exercise Notice registered in the name of the Purchasers, the Escrow Agent shall release the Remaining Debentures so purchased to the Purchaser and the Option Price to the Sellers. The exercise of the Option shall be applied pro-rata to Sellers according to the outstanding principal amount of Remaining Debentures then held by the Sellers. Following the Option Period, provided that the Escrow Agent has received no Exercise Notice during such period unless such Exercise Notices were honored in full, the Escrow Agent shall return the balance of the Remaining Debentures not subject to an Exercise Notice to the Sellers. (iv) It is expressly understood that the Escrow Agent acts hereunder as an accommodation to the Purchaser and the Sellers and as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form of execution of such instruments or for the identity, authority or right of any person executing or depositing the same or for the terms and conditions of any instrument pursuant to which the Escrow Agent or the parties may act. (v) The Escrow Agent shall no have duties or responsibilities except those set forth in this Agreement and shall incur no liability, other than by its own gross negligence, willful misconduct or fraud, in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be genuine, and the Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so. The Purchaser and the Sellers acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement and shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care beyond what Escrow Agent gives its own similar property. The Purchaser and the Sellers hereby jointly and severally agree to indemnify and save the Escrow Agent harmless from and against any and all loss, damage, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be incurred by the Escrow Agent (including attorneys' fees) by reason of its acceptance of, and its performance under, this Agreement unless caused by the gross negligence, willful misconduct or fraud of the Escrow Agreement)Agent. The Indemnification Shares shall be held for a period of twelve (12) months following Absent the Closing DateEscrow Agent's gross negligence, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of willful misconduct or fraud, the Indemnification Escrow Agent shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent's distribution of the Escrow Amount and the Purchased Preferred Shares or, in and the event such shares are sold, the value thereof as determined Purchased Warrants in accordance with the provisions of this Section 1.3(b), shall be Buyer's sole remedy for Agreement. (vi) This Agreement sets forth exclusively the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms duties of the Escrow Agreement Agent with respect to any and all matters pertinent thereto and no implied duties or obligations shall be determined read into this Agreement. (vii) The Sellers and the Company acknowledge that Escorw Agent represents the Purchaser on other legal matters and has represented the Purchaser in connection with this Agreement, and each the Sellers and the Company expressly waive any actual or potential conflict of interest which may be caused by averaging the closing sales price such representation or such dual roles of the Parent Stock Escrow Agent. (or, in case no reported sales take place on such day, the average viii) The provisions of the closing bid and ask prices on such daythis Section 1(g) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateshall survive any termination of this Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Axion International Holdings, Inc.)

Escrow. Notwithstanding anything in this Agreement to the contrary, any payment the Selling Stockholders are obligated to make to any Purchaser Indemnified Parties pursuant to this Article VIII shall be paid first, to the extent there are sufficient funds in the Indemnity Escrow Account, by release of funds to the Purchaser Indemnified Parties from the Indemnity Escrow Account by the Escrow Agent within five Business Days after such payment becomes payable hereunder (aand shall accordingly reduce the Indemnity Escrow Amount) and, second, to the extent the Indemnity Escrow Amount is insufficient to pay any remaining sums due, and such payment relates to a Loss for which the Indemnity Escrow Amount is not the sole recourse pursuant to Section 8.4(b), then the Selling Stockholders shall be required to pay all of such additional sums due and owing to the Purchaser Indemnified Parties by wire transfer of immediately available funds within five Business Days after such amounts become payable hereunder. On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form fifth anniversary of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent shall release the number of Transaction Shares determined Indemnity Escrow Amount (to the extent not utilized to pay Purchaser for any indemnification claim or otherwise earlier released in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement) to the Selling Stockholders (in accordance with the directions of the Stockholder Representative), except that the Escrow Agent shall retain an amount (up to the total amount then held by the Escrow Agent) equal to the amount of claims for indemnification under this Article VIII asserted prior to such fifth anniversary but not yet resolved (“Unresolved Claims”). The Indemnification Shares Indemnity Escrow Amount retained for Unresolved Claims shall be held released by the Escrow Agent (to the extent not utilized to pay Purchaser for a period any such claims resolved in favor of twelve (12Purchaser) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined upon their resolution in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as Article VIII and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateAgreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Public Education Inc)

Escrow. (a) On If this Agreement or any matter relating hereto shall become the date hereofsubject of any litigation or controversy, Buyer, each Seller and an escrow agent selected by 45 Buyer and Sellers ("NET ESCROW AGENT"Seller agree, jointly and severally, to hold Escrow Holder free and harmless from any loss or expense, except losses or 46 expenses as may arise from Escrow Holder's negligence or willful misconduct. If conflicting demands are made or notices 47 served upon Escrow Holder with respect to this Agreement, the parties expressly agree that Escrow is entitled to file a suit in 48 interpleader and obtain an order from the Court authorizing Escrow Holder to deposit all such documents and monies with the 49 Court, and obtain an order from the court requiring the parties to interplead and litigate their several claims and rights among 50 themselves. Upon the entry of an order authorizing such Interpleader, Escrow Holder shall be fully released and discharged Each party acknowledges that he/she has read, understood, and agrees to each and every provision of this page unless a particular paragraph is otherwise modified by addendum or counteroffer. Buyer's Name: Capital Homes LLC 000 Xxxxx xx Xxxx Xx. Xxxxxxxxx, XX BUYER(S) INITIALS: / Property Address: Henderson, 89015 SELLER(S) INITIALS: / 1 from any obligations imposed upon it by this Agreement; and Escrow Holder shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in not be liable for the form sufficiency or correctness 2 as to form, manner, execution or validity of EXHIBIT 1.3A hereto pursuant to which Sellers shallany instrument deposited with it, on the date hereof, deliver nor as to the NET identity, authority or rights of any 3 person executing such instrument, nor for failure of Buyer or Seller to comply with any of the provisions of any 4 agreement, contract or other instrument filed with Escrow Agent the Purchased SharesHolder or referred to herein. The Purchased Shares Escrow Holder's duties hereunder shall be held 5 limited to the safekeeping of all monies, instruments or other documents received by it as Escrow Holder, and for their disposition 6 in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to accordance with the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in In the event such shares are sold, the value thereof as determined an action is instituted in accordance connection with this Section 1.3(b)escrow, 7 in which ESCROW HOLDER is named as a party or is otherwise compelled to make an appearance, all costs, expenses 8 attorney fees, and judgments ESCROW HOLDER may expend or incur in said action, shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms responsibility of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateparties 9 hereto.

Appears in 1 contract

Samples: Vacant Land Purchase Agreement

Escrow. (a) On Prior to the date hereofclosing date, Buyer, each Seller and the Shareholder shall deliver to an escrow agent, to be agreed upon by the parties, hereinafter called escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver a certificate evidencing ownership of an escrow agreement ("NET ESCROW AGREEMENT") 80% equity interest in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, Company duly indorsed. CFC shall deliver to the NET Escrow Agent the Purchased Sharesescrow agent 3,000,000 shares of its common stock as described in Section One of this agreement. The Purchased Shares escrow shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant subject to the following terms of the NET Escrow Agreement.and conditions: (b1) On the Closing Date, Buyer, each Seller and an the escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number shares of Transaction Shares determined CFC and Company's ownership interest as set forth and provided in accordance with Section 1.2. The Escrow Shares One of this agreement. (2) All fees and expenses of the escrow agent shall be borne equally by the parties. (3) Additional shares received by the Shareholder with respect to shares held in escrow, as a result of stock dividends and stock splits shall be delivered to the escrow until December 31, 1998 (agent and shall be subject to the terms of this agreement. (4) The escrow agent shall hold the Escrow Agreement). The Indemnification Shares undistributed shares deposited hereunder until May 1, 2001, whereupon he shall be held for a period release to the Shareholder the balance of twelve (12) months following the Closing Dateshares remaining in escrow after adjustment as set forth in Section Seven of this agreement and payment to CFC of all of its indemnity claims, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudapproved as hereinafter provided, the Indemnification Shares or, except that in the event a claim that may result in indemnification hereunder remains undetermined as of May 30, 2001, as adequate number of shares shall be retained in escrow to provide for payment of such shares are soldclaim. (5) In the event of any claim by CFC for indemnification hereunder, CFC shall give written notice to the Shareholder thereof, and the parties shall attempt to reach agreement in respect thereto. If the parties fail to reach agreement within ten days after notice of a claim has been given, the value thereof as determined issue shall be submitted to arbitration in accordance with this Section 1.3(b), the rules and requirements of the American Arbitration Association then obtaining. The decision of the arbitrator shall be Buyer's sole remedy for final and binding on all parties, and appropriate instructions in conformity therewith shall immediately be given by the payment arbitrator to the escrow agent, who is authorized and directed to rely on such instructions. (6) The Shareholder shall have the right, at his own expense, to be represented by counsel of his own choice in connection with the defense of any Losses for claim which Buyer may be brought against Company in respect to which CFC may be entitled to indemnification as and under this agreement. In the event of any such claim, CFC shall give prompt written notice thereof to the extent provided Shareholder. If, after having received such notice, the Shareholder elects not to participate in Article VI hereof. The value the defense of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement such claim, they shall be determined bound by averaging the closing sales price of the Parent Stock (or, result obtained by CFC in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datedefense thereof.

Appears in 1 contract

Samples: Stock Purchase Agreement (China Net & Technologies Inc)

Escrow. (a) On At the date hereofClosing, Buyer, each Seller the Purchaser will withhold 400,000 of the Exchange Shares in accordance with Section 2.6(a) (rounded down to the nearest whole number of shares to be issued to such Corporation Stockholder) and an escrow agent selected by Buyer and Sellers deliver such shares (the "NET ESCROW AGENTEscrow Shares") shall execute to Borden Ladner Gervais LLP (the "Escrow Agent"), as escrow xxxxx, xx xx xxxx xx Escrow Agent as collateral for the Corporation's indemnification obligations under Article 10 and deliver pursuant to the provisions of an escrow agreement (the "NET ESCROW AGREEMENTEscrow Agreement") in a form to be mutually agreed by the form of EXHIBIT 1.3A parties hereto pursuant prior to which Sellers shallClosing and, on the date hereofupon such agreement, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreementattached hereto as Exhibit 2.7. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject Subject to the terms of the Escrow Agreement, the Escrow Shares will be held by the Escrow Agent from the Closing until the dates set forth in the Escrow Agreement (the "Escrow Period"). The Indemnification Any shares of Purchaser Common Stock or other equity securities issued or distributed by the Purchaser (including securities issued upon a Capital Change) with respect to the Escrow Shares in the Escrow Period shall be added to and considered part of the Escrow Shares. Cash dividends on the Escrow Shares shall be held for a period of twelve (12) months following deposited with the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value Escrow Agent until release thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms Escrow Agreement. The Escrow Shares withheld from each Corporation Stockholder will be represented by a certificate or certificates issued in the name of the Escrow Agreement Agent. Each Corporation Stockholder shall be determined by averaging shown as the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) record owner on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DatePurchaser's books and records of such number of Escrow Shares.

Appears in 1 contract

Samples: Merger Agreement (Workstream Inc)

Escrow. (a) On From and after the date hereof, Buyer, each Seller the Parties (with the Company acting on behalf of the shareholders of the Company until Shareholder Representative shall have been duly constituted and an escrow agent selected appointed by Buyer and Sellers ("NET ESCROW AGENT"all of such shareholders) shall execute cooperate in good faith to, and, on or prior to the Effective Time, shall negotiate and deliver draft an Escrow Agreement pursuant to which: (a) for the purpose of securing the indemnification obligations of the shareholders of the Company set forth in Article VIII and the Indemnification Agreements, at the Closing, Parent will deposit in escrow agreement with the Escrow Agent ("NET ESCROW AGREEMENT"i) certificates representing 15% of the Stock Consideration and (ii) cash representing 15% of the Cash Consideration (such portions of the Stock Consideration and Cash Consideration, plus any interest thereon or other accretions thereto, being collectively referred to as the “Escrow Fund”) in the form lieu of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms transferring such portion of the NET Escrow Agreement.Stock Consideration and paying such portion of the Cash Consideration to holders of Certificates in accordance with Section 2.02; (b) On distributions from the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined Fund will be made in accordance with Section 1.2. The 8.06; (c) 100% of the Escrow Shares Fund shall be held by the Escrow Agent (less any distributions to Parent in escrow connection with indemnification of any Parent Indemnified Parties) until the later of (i) the six-month anniversary of the Closing Date and (ii) the date on which Parent completes an audit of the Surviving Corporation for the period ending December 31, 1998 2006 (such later date, the “Initial Release Date”); (d) on the Initial Release Date (or the next succeeding business day if such date is not a business day) the Escrow Agent shall release to the former holders of Certificates certificates representing 50% of the initial Stock Consideration deposited with the Escrow Agent (less any prior distributions to Parent in connection with indemnification of any Parent Indemnified Parties and less a portion subject to the terms then-existing claims for indemnification by any Parent Indemnified Parties) and (ii) cash representing 50% of the initial Cash Consideration deposited with the Escrow AgreementAgent (less any prior distributions to Parent in connection with indemnification of any Parent Indemnified Parties and less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties). The Indemnification Shares ; (e) from and after the Initial Release Date (or the next succeeding business day if such date is not a business day), all property and amounts remaining in the Escrow Fund after the release described in the preceding clause (d) shall be held for a period by the Escrow Agent (less any distributions to Parent in connection with indemnification of twelve (any Parent Indemnified Parties) until the 12) months following -month anniversary of the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims ; (f) on such 12-month anniversary of fraudthe Closing Date (or the next succeeding business day if such date is not a business day), the Indemnification Shares or, Escrow Agent shall release to the former holders of Certificates all property and amounts then remaining in the event such shares are sold, Escrow Fund (less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties); and (g) any property and amounts remaining in the value thereof as determined Escrow Fund thereafter shall be distributed to Parent in connection with indemnification of any Parent Indemnified Parties and/or released to the former holders of Certificates upon final resolution of the applicable disputes in accordance with this any such resolution and Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date8.06.

Appears in 1 contract

Samples: Merger Agreement (Ddi Corp)

Escrow. (a) On Holder hereby authorizes and directs the date hereofSecretary of the Company, Buyeror such other person designated by the Company, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in to transfer the form of EXHIBIT 1.3A hereto pursuant Unreleased Shares as to which Sellers shall, on the date hereof, deliver Forfeiture Option is effective from Holder to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow AgreementCompany. (b) On To insure the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form availability for delivery of EXHIBIT 1.3B hereto Holder's Unreleased Shares upon forfeiture pursuant to which Buyer shall Section 3.1, Holder hereby appoints the Secretary, or any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such Unreleased Shares, if any, forfeited pursuant to the Forfeiture Option and shall, upon execution of this Agreement, deliver to Escrow Agent and deposit with the number Secretary of Transaction the Company, or such other person designated by the Company, the share certificates representing the Unreleased Shares, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit B. The Unreleased Shares determined in accordance with Section 1.2. The Escrow Shares and stock assignment shall be held by the Secretary in escrow until December 31escrow, 1998 (subject pursuant to the terms Joint Escrow Instructions of the Escrow Agreement)Company and Holder attached as Exhibit C hereto, until the Forfeiture Restriction becomes effective as provided in Section 3.1, until such Unreleased Shares are vested, or until such time as this Agreement no longer is in effect. The Indemnification Upon vesting of the Unreleased Shares, the escrow agent shall promptly deliver to the Holder the certificate or certificates representing such Shares in the escrow agent's possession belonging to the Holder, and the escrow agent shall be held for a period discharged of twelve (12) months following all further obligations hereunder; provided, however, that the Closing Date, unless disbursed earlier escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to Buyer for Claims other restrictions imposed pursuant to this Agreement. Other than . (c) The Company, or its designee, shall not be liable for Claims of fraud, any act it may do or omit to do with respect to holding the Indemnification Shares or, in escrow and while acting in good faith and in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment exercise of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateits judgment.

Appears in 1 contract

Samples: Restricted Stock Agreement (Arden Realty Inc)

Escrow. (ai) On Within one (1) Business Day following the date hereofclosing of the Share Purchase, Buyerthe Company shall deposit, each Seller for good and valuable consideration, the receipt, sufficiency and adequacy of which the Company hereby acknowledges, into an escrow agent selected by Buyer and Sellers account ("NET ESCROW AGENT"the “Escrow Account”) shall execute and deliver an escrow agreement with American Stock Transfer & Trust Company ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall“Escrow Agent”), on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant subject to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an a written escrow agreement ("ESCROW AGREEMENT"the “Escrow Agreement”) substantially in the form of EXHIBIT 1.3B attached as Exhibit A hereto pursuant and to which Buyer shall deliver be entered into on or prior to Escrow Agent the Share Purchase Closing Date, an amount equal to the Shares Purchase Price multiplied by the number of Transaction Shares determined held by Investor as of the closing of the Share Purchase (the “Escrowed Funds”). The Escrow Agreement shall irrevocably cause the Escrow Agent to release from the Escrow Account the aggregate Shares Purchase Price in accordance with Section 1.21. The Escrow Shares shall payments to be held in escrow until December 31, 1998 (subject to the terms of made by the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier Agent to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined Investor in accordance with this Section 1.3(b1 or to Investor and the Company in accordance with Section 4(d), if applicable, will be made solely with the Escrowed Funds. (ii) Upon receipt by the Escrow Agent and Company of written notice that Investor has sold Shares in the open market other than an Early Sale as provided in Section 4(d), the Escrow Agent shall be Buyer's sole remedy release to the Company for the payment of any Losses for which Buyer may be entitled to indemnification as and Company’s use without restriction an aggregate amount equal to the extent number of Shares sold multiplied by the Shares Purchase Price; provided in Article VI hereof. The value of that if Investor sold any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (orEarly Sale Shares, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the within five (5) consecutive trading days prior Business Days of the Company’s and the Escrow Agent’s receipt of the applicable Open Market Sale Notice, the Escrow Agent shall release from the Escrow Account (a) for Investor’s use without restriction an amount equal to the Closing DateEarly Sale Premium with respect to the Early Sale Shares sold by Investor, and (b) for the Company’s use without restriction an amount equal to the number of Early Sale Shares sold in the Early Sale multiplied by $10.36. (iii) In the event that Investor elects not to sell to the Company any Shares held by Investor by either (A) Investor delivering a written notice to the Company stating Investor’s intention not to sell any Shares to the Company, or (B) Investor failing to timely deliver a Shares Sale Notice to the Company pursuant to Section 1(a) for all of its Shares, the Company may promptly issue instructions to the Escrow Agent to release from the Escrow Account to the Company for the Company’s use without restriction an amount equal to (x) the Shares Purchase Price multiplied by (y) the number of Shares held by Investor.

Appears in 1 contract

Samples: Forward Share Purchase Agreement (8i Acquisition 2 Corp.)

Escrow. In lieu of delivering to such holders Certificates for the full number of shares of TKOG Common Stock provided for in Sections 2.7(a), (ab), and (c), TKOG shall deliver (A) On the date hereofto each such holder one or more Certificates, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") registered in the form name of EXHIBIT 1.3A hereto pursuant such holder, for a number of shares of TKOG Common Stock equal to which Sellers shall, on 90% of the date hereof, deliver total number of shares of TKOG Common Stock otherwise to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, such holder pursuant to the terms of the NET Escrow Agreement. this Section 2.8; and (bB) On the Closing Dateto Star Bank, Buyer, each Seller and an N.A. as escrow agent selected by Buyer and Sellers (the "ESCROW AGENT") shall execute and deliver an for deposit into the escrow fund (the "ESCROW FUND") provided for in the escrow agreement in the form attached as Exhibit 2.8 hereto (the "ESCROW AGREEMENT") substantially ), to secure the indemnity obligations under Section 11.2, one or more Certificates, registered in the form name of EXHIBIT 1.3B hereto the Escrow Agent, a number of shares of TKOG Common Stock equal to 10% of the total number of shares of TKOG Common Stock otherwise to be delivered pursuant to this Section 2.8 (with any fraction of a share being rounded down to the nearest whole share), all of which Buyer shall deliver to will be held as part of the Escrow Fund and disposed of by the Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms provisions of the Escrow Agreement). The Indemnification Shares Escrow Agreement is incorporated herein by reference and shall be held for a period considered part of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than By voting for Claims or failing to dissent from the approval of fraudthis Agreement, each Company Shareholder automatically and without any further act or deed irrevocably agrees that: (A) such Company Shareholder accepts and shall be bound by the Indemnification Shares orterms and provisions of the Escrow Agreement; and (B) Xxxxxxxxx Xxxxx is appointed Shareholder Representative (the "SHAREHOLDER REPRESENTATIVE") for purposes of the Escrow Agreement with all rights, powers and authority provided for in the event such shares are sold, Escrow Agreement and that any action taken by the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer Shareholder Representative pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (orconclusive, in case no reported sales take place on valid, binding and enforceable with respect to each such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateCompany Shareholder.

Appears in 1 contract

Samples: Merger Agreement (Kroll O Gara Co)

Escrow. On or before each of the Closing Dates, (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") ------ Company shall execute and deliver an to the escrow agreement agent (the "NET ESCROW AGREEMENTEscrow Agent") identified in the form of EXHIBIT 1.3A Escrow Agreement attached hereto as Exhibit D (the "Escrow Agreement") all applicable agreements, documents, instruments and writings required pursuant to which Sellers shall, on the date hereof, deliver (i) Section 4.3 in regard to the NET Escrow Agent First Tranche Closing (collectively, the Purchased Shares. The Purchased Shares shall be held "First Tranche Company Closing Documents") or (ii) Section 4.4 in escrow until regard to the Second Tranche Closing Date at which time they will (collectively, the "Second Tranche Company Closing Documents" and together with the First Tranche Company Closing Documents, the "Company Closing Documents"), to be delivered to Buyerby the Company including, pursuant to without limitation, certificates for the terms number and series of the NET Escrow Agreement. Preferred Shares set forth opposite each Purchaser's name on Exhibit A or Exhibit AA, as applicable, registered in such Purchaser's name and such Purchaser's Warrants and (b) On each of the Closing Date, Buyer, each Seller Purchasers shall pay by wire transfer of immediately available funds into escrow in accordance with the Escrow Agreement such Purchaser's Purchase Price and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement all applicable agreements, documents, instruments and writings required pursuant to (i) Section 4.1 in regard to the First Tranche Closing (collectively and together with such Purchaser's First Tranche Purchase Price, the "ESCROW AGREEMENTFirst Tranche Purchaser's Closing Documents") substantially or (ii) Section 4.2 in regard to the form Second Tranche Closing (collectively, and together with such Purchaser's Second Tranche Purchase Price, the "Second Tranche Purchaser's Closing Documents" and together with the First Tranche Purchaser's Closing Documents, and the Company Closing Documents, the "Closing Documents"), to be delivered by such Purchaser. In regard to the First Tranche Closing, the Escrow Agent shall give notice (an "Escrow Agent Notice") to the parties hereto when the Escrow Agent has received all of EXHIBIT 1.3B hereto pursuant to which Buyer the First Tranche Company Closing Documents and First Tranche Purchaser's Closing Documents and shall deliver the First Tranche Company Closing Documents to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject Purchasers and wire transfer the funds constituting the First Tranche Purchase Prices and deliver the other First Tranche Purchaser's Closing Documents to the Company pursuant to the terms of the Escrow Agreement. In regard to the Second Tranche Closing, the Escrow Agent shall give an Escrow Agent Notice to the parties hereto when the Escrow Agent has received all the Second Tranche Company Closing Documents and Second Tranche Purchaser's Closing Documents. The Company shall then give notice (the "Company Closing Notice") to the Escrow Agent and the Purchasers when all of the conditions set forth in Section 4.2 have been satisfied or waived and that it is ready to file the Registration Statement as soon as is practicable after receipt of the Purchaser Closing Notice (defined below) of each Purchaser. Each Purchaser shall give notice (each a "Purchaser Closing Notice") to the Company and the Escrow Agent that all of the conditions set forth in Section 4.4 have been satisfied or waived except for Section 4.4(l). The Indemnification Shares Upon the filing of the Registration Statement, the Company shall be held for a period of twelve give notice (12the "Filing Notice") months following to the Escrow Agent and the Purchasers that such filing has occurred. As soon thereafter as is practicable on the Second Tranche Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in Escrow Agent shall deliver the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and Second Tranche Company Closing Documents to the extent provided in Article VI hereof. The value of any Indemnification Shares paid Purchasers and wire transfer the funds constituting the Second Tranche Purchase Prices and deliver the other Second Tranche Purchaser's Closing Documents to Buyer the Company pursuant to the terms and conditions of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateAgreement.

Appears in 1 contract

Samples: Series B Convertible Preferred Stock Purchase Agreement (Net Value Holdings Inc)

Escrow. As security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of the Shares upon exercise of the Purchase Option, Purchaser hereby delivers for deposit with the Secretary of the Company, or such other person designated by the Company, as escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the certificate or certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of the Company and Purchaser: (a) On In the date hereofevent the Company exercises the Purchase Option, Buyer, each Seller Purchaser and an escrow agent selected by Buyer the Company hereby irrevocably authorize and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in direct the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent to execute the Purchased Shares. The Purchased Shares shall be held transaction contemplated by any notice of exercise of the Purchase Option in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to accordance with the terms of the NET Escrow such notice and this Agreement. (b) On In connection with such transaction the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent is directed to (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of Transaction shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares determined in accordance to be transferred, to the Company against the delivery of the Option Purchase Price. (c) Purchaser irrevocably authorizes the Company to deposit with Section 1.2. The the Escrow Agent any certificates evidencing the Shares shall to be held by the Escrow Agent hereunder and any additions and substitutions to said Shares as described in this Agreement. Purchaser irrevocably constitutes and appoints the Escrow Agent as Purchaser's attorney-in-fact and agent for the term of this escrow until December 31, 1998 to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated. (subject d) Upon the expiration or termination of the Purchase Option as to the terms Shares as provided in this Agreement, the Escrow Agent will deliver to Purchaser the certificate or certificates representing such Shares and the escrow shall thereafter terminate as to such Shares. (e) If at the time of termination of this escrow the Escrow Agent has possession of any documents, securities, or other property belonging to Purchaser, the Escrow Agent shall deliver such property to Purchaser, and be discharged of all further obligations hereunder. (f) The responsibilities of the Escrow Agreement)Agent hereunder shall terminate if the Secretary of the Company shall cease to be the Secretary or if the Escrow Agent shall resign by written notice to each party. The Indemnification Shares In the event of any such termination, the Company shall appoint a successor Escrow Agent. In the absence of such appointment, the President of the Company shall be the Escrow Agent. (g) It is understood and agreed that should any dispute arise with respect to the delivery, ownership, or right of possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part of said Shares until such disputes shall have been settled either by mutual written agreement or by a court order, decree, or judgment, if applicable, but the Escrow Agent shall be under no duty whatsoever to institute or defend such proceedings. (h) By signing this Agreement, the Escrow Agent becomes a party hereto only for the purpose of executing the instructions set forth in this Section 10 and does not otherwise become a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant party to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Epitope Inc/Or/)

Escrow. With respect to each Purchaser that has not agreed to wire its Subscription Amount directly to the Company: (ai) On Simultaneously with the date hereofexecution and delivery of this Agreement by such Purchaser, Buyer, each Seller and an escrow agent selected by Buyer and Sellers such Purchaser shall promptly cause a wire transfer of immediately available funds ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of Lxxxxxxxxx Xxxxxxx PC (the form of EXHIBIT 1.3A “Escrow Agent”) set forth on Exhibit G attached hereto pursuant to which Sellers shall, on (the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be aggregate amounts received being held in escrow until by the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent are referred to herein as the number of Transaction Shares determined “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 1.2. 2.1(d)(ii) below. (ii) The Escrow Shares Agent shall be held continue to hold the Escrow Amount in escrow until December 31, 1998 (in accordance with and subject to this Agreement, from the terms date of its receipt of the funds constituting the Escrow Amount until the soonest of: (A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR (B) in the case of the Closing, receipt of written instructions from the Company and the Lead Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agents, the fees payable to such Placement Agents (which fees shall be set forth in such instructions), and (2) the balance of the aggregate purchase price to the Company. (iii) The Company and the Purchasers contributing to the Escrow Amount acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows: (A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agents of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Lead Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Lead Placement Agent, each of the responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address. (B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. (C) The Company hereby indemnifies and holds harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, except to the extent such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent. (D) The Escrow Agent has acted as legal counsel to the Placement Agents in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agents including, without limitation, with regard to any dispute arising out of this Agreement), the other Transaction Documents, the Escrow Amount or any other matter. The Indemnification Shares Purchasers hereby expressly consent to permit the Escrow Agent to represent the Placement Agents in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice. (E) The Escrow Agent shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agents and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be held to hold the Escrow Amount, for a period of twelve ten (1210) months calendar days following the Closing Dateeffective date of resignation, unless disbursed earlier at which time, (I) if a successor escrow agent shall have been appointed and have accepted such appointment in a writing to Buyer both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or (II) if a successor escrow agent shall not have been appointed, for Claims pursuant any reason whatsoever, the Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, the Placement Agents and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Lead Placement Agent in form and formality satisfactory to the Escrow Agent. (F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, the Lead Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement. Other than for Claims of fraudAgreement or the Escrow Amount, the Indemnification Shares orEscrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the event Escrow Amount with the clerk of a court selected by the Escrow Agent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of or in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such shares are sold, the value thereof as determined court in accordance with this Section 1.3(b)provision, shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement Agent shall thereupon be determined by averaging the closing sales price relieved of the Parent Stock all further obligations and released from all liability hereunder. (or, in case no reported sales take place on such day, the average G) The provisions of the closing bid and ask prices on such daythis Section 2.1(d) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateshall survive any termination of this Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Ardea Biosciences, Inc./De)

Escrow. Escrow Agent shall hold the Fund and documents in escrow, dispose of the Fund, pro rate revenues and expenses and deliver documents only in accordance with the following provisions: (a) On Simultaneously with the date hereoffull execution of this Agreement, Buyer, each Purchaser and Seller and opened an escrow agent selected by Buyer and Sellers (the "NET ESCROW AGENTEscrow") shall execute and deliver an escrow agreement with Xxxxx, Xxxxxx, Xxxx & Xxxxxxxxxx, P.A. (the "NET ESCROW AGREEMENTEscrow Agent") in the form of EXHIBIT 1.3A hereto pursuant ), whose address is 000 X. Xxxxxxx Boulevard, Suite 1000, Tampa, FL 33602, by delivering to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased SharesInitial Deposit. Within two days after the full execution of this Agreement, the parties shall deliver to Escrow Agent a fully executed copy of this Agreement. The Purchased Shares purchase and sale of the Property shall be held completed through the Escrow. This Agreement, together with the standard form provisions of Escrow Agent, which are attached hereto as Schedule "7", shall constitute joint escrow instructions to Escrow Agent in escrow until connection with the Closing Date at which time they will Escrow. In the event of any inconsistency between the provisions of this Agreement (other than Schedule "7") and the provisions of Schedule "7", the former shall prevail. Purchaser and Seller hereby agree to execute such additional instructions not inconsistent with this Agreement as may be delivered to Buyer, pursuant to the terms of the NET reasonably required by Escrow AgreementAgent. (b) On At the Closing DateClosing, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent shall do the number of Transaction Shares determined following: (i) Prorate all matters in accordance with Section 1.23, above, based on the latest available information and obtain Seller's and Purchaser's approval of those prorations; (ii) Cause the Deed and the Prudential Lease Memorandum to be recorded; (iii) Disburse all funds deposited with Escrow Agent by Purchaser in payment of the Purchase Price for the Property as follows: A. Deduct the amount of items chargeable to the account of Seller pursuant to this Agreement; B. Disburse to Seller's Broker its commission relating to the sale of the Premises in accordance with a separate agreement, a copy of which was delivered to Escrow Agent and the initial commission relating to the Prudential Lease (but not any commissions owed on the Prudential Lease after the commencement date of the Prudential Lease, which commissions shall be the responsibility of Purchaser); C. The remaining balance of the funds deposited by Purchaser in the Escrow in payment of the Purchase Price shall be disbursed to Seller pursuant to its demand; (iv) Deliver to Seller the following documents: Original counterparts of the Bill of Sale, the A&A Agreements, the Prudential Lease, and any other documents executed by Purchaser pursuant to Section 12 hereof. (v) Deliver or cause to be delivered to Purchaser the marked up Title Commitment referenced in Section 11 above and the following documents: A photostat copy of the Deed and original counterparts of the Bill of Sale, the A&A Agreements, the Prudential Lease, and any other documents executed by Seller pursuant to Section 11 hereof. (c) The costs incidental to the Closing shall be paid as follows: (i) Seller shall pay: (A) Fifty percent (50%) of the Documentary Stamps due on the Deed; (B) Fifty percent (50%) of the premium (at promulgated rates) and Fifty percent (50%) of all search fees for the Title Commitment and the owner's title policy issued pursuant thereto; (C) Fifty percent (50%) of the cost of the Survey; (D) the cost of recording the Deed; and (E) Fifty percent (50%) of the sales tax due, if any, on the transfer of the Personal Property. (ii) Purchaser shall pay: (A) Fifty percent (50%) of the premium (at promulgated rates) and Fifty percent (50%) of all search fees for the Title Commitment and the owner's title policy issued pursuant thereto; (B) Fifty percent (50%) of the cost of the Survey; (C) Fifty percent (50%) of the Documentary Stamps due on the Deed; and (D) Fifty percent (50%) of the sales tax due, if any, on the transfer of the Personal Property. (iii) Purchaser and Seller shall each pay their own legal fees and other incidental expenses incurred in connection with the transaction contemplated by this Agreement. (iv) Purchaser shall pay all documentary stamps, intangible taxes, and recording fees on any note, mortgage or document evidencing a security interest executed in connection with placement of debt on the Premises and any lender's title insurance policy ($250.00) and any title insurance endorsements required by lender (at promulgated rates). (v) Any other costs or expenses in connection with the transaction contemplated by this Agreement shall be apportioned in the manner customary in similar real estate transactions in Xxxxx County, Florida. (d) Escrow Agent shall deliver the Fund to Seller or Purchaser, as the case may be, as follows: (i) to Seller, upon completion of the Closing; or (ii) to Seller, after receipt of Seller's demand in which Seller certifies either that (A) Purchaser failed to pay the Purchase Price at the Closing, (B) Purchaser has otherwise defaulted under this Agreement and did not cure such default after notice as provided in Section 16(b) hereof, or (C) this Agreement has been otherwise terminated or cancelled, and Seller is thereby entitled to receive the Fund; but Escrow Agent shall not honor Seller's demand until more than ten (10) days after Escrow Agent has given a copy of Seller's demand to Purchaser in accordance with Section 20(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or (iii) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (A) Seller is unable to deliver title to the Premises as required hereby, (B) Seller has otherwise defaulted under this Agreement and did not cure such default after notice as provided in Section 17(c) hereof, or (C) this Agreement has been otherwise terminated or cancelled, and Purchaser is thereby entitled to receive the Fund; but Escrow Agent shall not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Seller in accordance with Section 20(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon delivery of the Fund, Xxxxxx Agent shall be relieved of all liability hereunder and with respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the party entitled to receive the same, by (i) a good, unendorsed trust account check of Escrow Agent payable to the order of such party, (ii) an unendorsed official bank or cashier's check payable to the order of such party, or (iii) a bank wire transfer of immediately available funds to an account designated by such party. (i) Upon receipt of a written demand from Seller or Purchaser under Section 20(d)(ii) or (iii), Escrow Agent shall send a copy of such demand to the other party. Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Fund to the party making such demand by giving a notice of objection (a "Notice of Objection") to Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the party who made the demand; and thereafter, in its sole and absolute discretion, Escrow Agent may elect either (A) to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Seller directing the disbursement of the Fund, in which event Escrow Agent shall disburse the Fund in accordance with such agreement; and/or (B) to take any and all actions as Escrow Agent deems necessary or desirable, in its sole and absolute discretion, to discharge and terminate its duties under this Agreement, including, without limitation, depositing the Fund into any court of competent jurisdiction and bringing any action of interpleader or any other proceeding; and/or (C) in the event of any litigation between Seller and Purchaser, to deposit the Fund with the clerk of the court in which such litigation is pending. (ii) If Escrow Agent is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Section 20(d)(ii) or (iii), or Notice of Objection under Section 20(b)(i)), notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 20(e)(i)(A),(B) or (C) and may decline to take any other action whatsoever. In the event the Fund is deposited in a court by Escrow Agent pursuant to Section 20(e)(i)(B) or (C), Escrow Agent shall be entitled to rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to disposition of the Fund, Purchaser and Seller shall pay the attorney's fees and costs incurred by Escrow Agent (which said parties shall share equally, but for which said parties shall be jointly and severally liable) for any litigation in which Escrow Agent is named as, or becomes, a party. (f) Notwithstanding anything to the contrary in this Agreement, within one (1) business day after the date of this Agreement, Escrow Agent shall place the Funds in an Approved Investment. The Escrow Shares interest, if any, which accrues on such Approved Investment shall be held in escrow until December 31, 1998 (subject to the terms deemed part of the Fund; and Escrow Agreement). The Indemnification Shares Agent shall be held for a period dispose of twelve (12) months following such interest as and with the Closing Date, unless disbursed earlier to Buyer for Claims Fund pursuant to this Agreement. Other than for Claims of fraud, Escrow Agent may not commingle the Indemnification Shares or, in Fund with any other funds held by Escrow Agent. Escrow Agent may convert the event such shares are sold, Fund from the value thereof Approved Investment into cash or a non-interest-bearing demand account at an Approved Institution as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of follows: (i) at any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock time within three (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day3) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date; or (ii) if the Closing Date is accelerated or extended, at any time within three (3) days prior to the accelerated or extended Closing Date (PROVIDED, HOWEVER, that Seller and Purchaser shall give Escrow Agent timely notice of any such acceleration or extension and that Escrow Agent may hold the Fund in cash or a non-interest-bearing deposit account if Seller and Purchaser do not give Escrow Agent timely notice of any such adjournment). (g) As used herein, the term "Approved Investment" means (i) any interest-bearing demand account or money market fund in First Union National Bank of Florida, N. A. branch located in the City of Tampa or in any other institution otherwise approved by both Seller and Purchaser (collectively, an "Approved Institution"), or (ii) any other investment approved by both Seller and Purchaser. The rate of interest or yield need not be the maximum available and deposits, withdrawals, purchases, reinvestment of any matured investment and sales shall be made in the sole discretion of Escrow Agent, which shall have no liability whatsoever therefor. Discounts earned shall be deemed interest for the purpose hereof.

Appears in 1 contract

Samples: Undefined (Ocwen Asset Investment Corp)

Escrow. (ai) On the date hereofEffective Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") MKHD shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in deposit with the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent any and all cash obtained from MKHD’s Interim Financing efforts, not already held by the Purchased Shares. The Purchased Shares shall Escrow Agent (the “Escrowed Funds”) (the “Escrowed Consideration”) to be held in a non-interest-bearing escrow until account, if applicable (the Closing Date at which time they will be delivered to Buyer, pursuant to “Escrow Account”) in accordance with the terms of the NET Escrow Agreement. , to be released to MKHD immediately upon the Closing; and (bii) On the Closing Date, BuyerMKHD and the MKHD Controlling Shareholders shall deliver to the Escrow Agent the share certificates and/or book entry shares representing the Claw Back Equity (as defined under Schedule [ ]) along with stock powers, in the form attached hereto as Exhibit [__], executed by each Seller such MKHD Controlling Shareholders (“Stock Powers”), in blank, to FRMB, to hold such Stock Powers with it until such time as the Claw Back Equity may be released from the Escrow Account as set forth in Subsection (e) below. The MKHD Controlling Shareholders further hereby irrevocably constitute and an escrow agent selected appoint the MKHD chief executive officer or any other representative designated by Buyer the Board of Directors, as their attorney-in-fact and Sellers agent, to execute with respect to such Claw Back Equity all documents necessary or appropriate to effect the surrender and transfer of the Claw Back Equity in accordance with the terms of this Agreement until such time as the Claw Back Equity may be released from the Escrow Account as set forth in Subsection ("ESCROW AGENT"e) below. “Escrow Agreement” shall execute mean the Escrow Agreement entered into by and deliver an escrow agreement ("ESCROW AGREEMENT") among FRMB, MKHD, and the MKHD Controlling Shareholder, and the Escrow Agent with respect to the Escrowed Consideration and the Claw Back Equity, substantially in the form of EXHIBIT 1.3B attached hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.Exhibit B.

Appears in 1 contract

Samples: Definitive Agreement (Mount Knowledge Holdings, Inc.)

Escrow. (a) On Purchaser hereby authorizes and directs the date hereofSecretary of the Company, Buyeror such other person designated by the Company, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") to transfer any Shares forfeited in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver accordance with Section 2 above from Purchaser to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow AgreementCompany. (b) On To insure the Closing Dateavailability for delivery of the Shares upon Purchaser’s (1) This is Demand’s standard vesting formula, Buyerwhich should be adjusted as appropriate. In certain circumstances, each Seller it may be appropriate to link vesting to continued “Service Provider” status (rather than employment) in order to cause vesting to continue while serving as a director or consultant. (2) Forfeiture provisions may need to be adjusted to accommodate any post-termination vesting that may occur. forfeiture thereof, Purchaser hereby appoints the Secretary of the Company, or any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and an escrow agent selected transfer unto the Company, such Shares, if any, forfeited by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined Purchaser in accordance with Section 1.22 above and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Company, or such other person designated by the Company, the share certificates representing any and all Unvested Shares, together with the stock assignment duly endorsed in blank. The Escrow share certificates representing the Unvested Shares and the stock assignment shall be held by the Secretary in escrow until December 31escrow, 1998 (subject pursuant to the terms Joint Escrow Instructions of the Escrow Agreement)Company and Purchaser attached as Exhibit A hereto, until the first to occur of (i) Purchaser’s forfeiture of such Shares in accordance with Section 2 above, (ii) the date on which such Shares cease to be Unvested Shares, or (iii) this Agreement ceasing to be in effect. The Indemnification Promptly following the date on which any Shares cease to be Unvested Shares, the escrow agent shall deliver to Purchaser the certificate or certificates representing such Shares in the escrow agent’s possession belonging to Purchaser, and the escrow agent shall be held for a period discharged of twelve (12) months following all further obligations hereunder; provided, that the Closing Date, unless disbursed earlier escrow agent shall nevertheless retain such certificate or certificates if so required pursuant to Buyer for Claims other restrictions imposed pursuant to this Agreement. Other than . (c) The Company, or its designee, shall not be liable for Claims of fraud, any act it may do or omit to do with respect to holding the Indemnification Shares or, in escrow and while acting in good faith and in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment exercise of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateits judgment.

Appears in 1 contract

Samples: Restricted Stock Purchase Agreement (Demand Media Inc.)

Escrow. The funds received by Gibraltar Bank (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"“Escrow Agent”) in the form accordance with Section 2.2 of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares this Agreement shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms and conditions of this Section 2.3 of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares funds shall be held in escrow until December 31, 1998 (subject a non-interest bearing account. The Escrow Agent shall disburse the funds to the terms Company, or as the Company shall in writing direct, upon receipt of written confirmation to Escrow Agent from WindsorTech and Bxxxxx Partners, LP pursuant to the Escrow Agreement of even date herewith, that all closing contingencies have been met. If the closing of such transaction has not taken place by the closing date as defined in this Agreement), or the closing date as extended as defined in this Agreement, the Escrow Agent shall return such funds to the Investors immediately and shall return all executed documents to the Company. The Indemnification Shares shall be held for a period of twelve (12) months following Investors and the Closing DateCompany, unless disbursed earlier jointly and severally, agree to Buyer for Claims pursuant indemnify Escrow Agent for, and to hold it harmless against, any loss, liability, damage or expense incurred by Escrow Agent arising out of, or in connection with, this Agreement. Other than for Claims of fraud, the Indemnification Shares orany litigation arising in connection with this Agreement or any transaction related in any way hereto, including but not limited to attorneys' fees incurred by Escrow Agent in the event of any question as to the provisions hereof or its duties hereunder, and other costs and expenses incurred by Escrow Agent in fulfilling its duties and responsibilities hereunder, or incurred by Escrow Agent defending itself against any claim of liability (other than, in all such shares are soldcases, the value thereof as determined for Escrow Agent’s willful misconduct or gross negligence). Escrow Agent shall have no duties arising from this Agreement except those expressly set forth in accordance with this Section 1.3(b)2.3 and it shall not be bound by any notice of claim or demand, or any waiver, modification or amendment unless it shall be Buyer's sole remedy for the payment have given its prior written consent thereto. Page 4 of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.26

Appears in 1 contract

Samples: Stock Purchase Agreement (Qsgi Inc.)

Escrow. (a) On At or immediately prior to the date hereof, BuyerClosing, each Seller of the Sellers, the Buyer and an Continental Stock Transfer & Trust Company, as escrow agent selected by Buyer and Sellers (the "NET ESCROW AGENT") shall execute and deliver ), will enter into an escrow agreement substantially in the form attached hereto as EXHIBIT B (the "NET ESCROW AGREEMENT"). At the Closing the Buyer will withhold from the Consideration otherwise payable to the Sellers, as provided in Section 1.06, (x) a cash amount equal to ten percent (10%) of the aggregate Cash Consideration and Cash Alternative Consideration receivable by Bunch and MxXxxxx, as set forth on Schedule 3 (the "CASH ESCROW AMOUNT"), and (y) a certificate or certificates, made out in the form name of EXHIBIT 1.3A hereto pursuant to which Sellers shallWhite, on representing sixty thousand, seven hundred eighty-three (60,783) shares of Buyer Common Stock (the date hereof"SHARE ESCROW AMOUNT" and, together with the Cash Escrow Amount, the "ESCROW AMOUNT"). At the Closing White shall deliver to the NET Buyer a stock power, duly executed by him, with the signature medallion guaranteed, with respect to the Share Escrow Agent Amount. As soon as practicable thereafter the Purchased Shares. The Purchased Shares Buyer shall be held in escrow until the Closing Date at which time they will deliver or cause to be delivered to Buyerthe Escrow Agent both the Escrow Amount and such stock power, pursuant to for holding by the Escrow Agent in accordance with the terms of the NET Escrow Agreement. (b) On The Escrow Agreement shall provide, among other things, for the Closing Dateestablishment and maintenance of subaccounts with respect to each Seller for the Cash Escrow Amount allocable to, Buyerand being deposited by the Buyer on behalf of, each of Bunch and MxXxxxx and for the Share Escrow Amount allocable to, and being deposited by the Buyer on behalf of, White. The subaccount of each Seller under the Escrow Amount shall be reduced from time to time by the release to the Buyer of such funds or share certificates equal to the amount of Damages (as defined) with respect to which the Buyer is entitled to indemnity pursuant to Article VI and an escrow agent selected by the amount of any award or judgment obtained post-Closing by the Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially or the Company against such Seller under any of the other Acquisition Agreements, subject in each case to the procedures set forth in the form Escrow Agreement. Upon any reduction of EXHIBIT 1.3B hereto pursuant the Escrow Amount resulting from an indemnity claim hereunder, the subaccount of the Seller liable thereunder shall be reduced to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. reflect such payment. (c) The Escrow Shares Agreement shall be further provide, among other things, that on August 11, 2001, any funds or share certificates held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares in any subaccount for a Seller shall be held for a period of twelve (12) months following the Closing Datereleased to such Seller; provided, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudhowever, the Indemnification Shares orthat if, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided that, there are one or more pending claims against any Seller at the close of business on August 10, 2001, the Escrow Agent shall continue to hold in Article VI hereof. The value escrow the funds or share certificates, as the case may be, that are equal to the amount of any Indemnification Shares paid to Buyer such claim or claims, as set forth in the notice or notices given pursuant to the terms Section 6.03 of this Agreement, unless and until such claim or claims are resolved in one of the manners contemplated by the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateAgreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Maxcor Financial Group Inc)

Escrow. (a) On The Escrow Agent is authorized and agrees by acceptance thereof to deposit the date hereof, Buyer, each Deposit promptly into an interest-bearing account in an institution insured by the Federal Deposit Insurance Corporation or as otherwise instructed by Seller and an escrow agent selected by Buyer in writing, and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held hold same in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2the terms and conditions of this Contract until same is to be distributed as provided herein. The Escrow Shares shall be held in escrow until December 31, 1998 (subject In the event of doubt as to the terms Escrow Agent’s duties or liabilities under the provisions of this Contract, the Escrow Agent may, in the Escrow Agent’s sole discretion, continue to hold the subject matter of the Escrow Agreement)until the parties mutually agree to disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or the Escrow Agent may deposit same with the clerk of the court having jurisdiction of the dispute, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any items theretofore delivered out of Escrow. The Indemnification Shares shall be held for In the event of any suit between Buyer and Seller wherein the Escrow Agent is made a period party by virtue of twelve (12) months following acting as the Closing DateEscrow Agent hereunder, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, or in the event such shares are soldof any suit wherein the Escrow Agent interpleads the subject matter of this Escrow, the value thereof as determined in accordance with this Section 1.3(b), Escrow Agent shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification recover reasonable attorney’s fees and costs incurred, said fees and costs to be charged and assessed as and court costs awarded to the extent provided in Article VI hereofprevailing party. The value of any Indemnification Shares paid to Seller and Buyer hereby designate the Escrow Agent as the “Reporting Person” for the transaction pursuant to the terms Section 6045(e) of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateCode.

Appears in 1 contract

Samples: Purchase and Sale Agreement (CAESARS ENTERTAINMENT Corp)

Escrow. (a) On An escrow account (the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT"“Escrow Account”) shall execute and deliver will be established pursuant to an escrow agreement ("NET ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3A attached hereto pursuant to which Sellers shall, as Exhibit A (the “Escrow Agreement”). Each Purchaser’s Investment Amount for the Seller Shares set forth on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they its signature page hereto will be delivered to Buyerthe Escrow Account. Each Purchaser shall purchase from each Seller the number of shares of Company common stock as set forth opposite such Purchaser’s name on Exhibit C attached hereto. Such Purchaser’s Investment Amount shall be allocated to purchasing the shares of Company common stock being offered by ABS Capital Partners III, pursuant L.P. up to a total value of $12,020,926.30. Any remaining portion of Purchaser’s Investment Amount shall be allocated to purchasing the terms shares of the NET Escrow Agreement.Company common stock being offered by Tarantella, Inc. (b) On Concurrently with its execution of this Agreement each party to this Agreement will deliver or cause to be delivered to Xxxx Capital Partners, LLC (“RCP”): (i) for each Purchaser, duly and validly executed copies of the Closing DateRegistration Rights Agreement, Buyer, each Seller the Notice of Registration Statement and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") Selling Securityholder Questionnaire substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject Exhibit A attached to the terms Registration Rights Agreement and all other documents required to be duly and validly executed and delivered by the Purchasers; (ii) each Seller will deliver or cause to be delivered to RCP duly and validly executed copies of the Registration Rights Agreement, the Escrow Agreement), and all other documents required to be duly and validly executed and delivered by each Seller; and (iii) the Company will deliver or cause to be delivered with RCP duly and validly executed copies of the Registration Rights Agreement, the Escrow Agreement, and all other documents required to be duly and validly executed and delivered by the Company. (c) Prior to the Closing, each Seller will deliver to the Transfer Agent certificates representing the Seller Shares, together with such other documents as the Company and the Transfer Agent may require to effect the transfer of such shares to the name of the Purchasers, including executed stock powers and directions for the Transfer Agent to effect such transfer. The Indemnification Company will use its reasonable best efforts to cause the Transfer Agent to reissue the Seller Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event name of each Purchaser so that Certificates registered in the name of each Purchaser will be issued to such shares are sold, Purchaser at the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateClosing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Rainmaker Systems Inc)

Escrow. (ai) On Contemporaneous with the execution of this Agreement, Purchaser shall deposit with Xxxxxxx X. Xxxxxxxxx, Esq. (The “Escrow Holder”) the amount of Fifty Thousand ($50,000.00) Dollars as a good faith non-refundable deposit (the “Cash Deposit”) to be held by the Escrow Holder in an Attorney Escrow Account at the Sterling National Bank, New York, New York pursuant to the terms of an Escrow Agreement, dated as at the date hereofhereof among the Parties hereto and the Escrow Holder and annexed hereto and incorporated by reference herein as Exhibit “A.” The non-refundable Cash Deposit shall be paid to the Sellers Representative, Buyer, each Seller for and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") on behalf of the Selling Parties in the form of EXHIBIT 1.3A hereto event that the Purchaser shall not fulfill its obligations pursuant to Sections 1-3, above, unless the Purchaser is precluded from fulfilling its obligations hereunder as a result of the actions or inactions of the Selling Parties, in which event the Cash Deposit shall be returned to the Purchaser. In the event the transactions contemplated by this Agreement are consummated, the non-refundable Cash Deposit shall be delivered to the Sellers shallRepresentative and deducted from that part of the Purchase Price to be paid by Purchaser pursuant to Section 1, on herein. (ii) Contemporaneous with the date hereofexecution of this Agreement, the Selling Parties shall deliver to the NET Escrow Agent Holder share certificates of the Purchased SharesCompany (the ”Certificates”) representing all of the Selling Parties Shares as set forth and described in the Escrow Agreement annexed hereto as Exhibit A among the Escrow Holder, the Selling Parties and the Purchaser. The Purchased Shares shall Pursuant to the Escrow Agreement, the Certificates will be held in escrow until (A) the Closing Date at which time they will be delivered to Buyer, pursuant the Escrow Holder shall deliver the Certificates to the terms Purchaser coincident with the fulfillment of all of the NET obligations of the respective Parties hereto at the Closing; or (B) as otherwise provide in the Escrow Agreement. (biii) On At the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") the Parties shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms each and all of the Escrow Agreement). The Indemnification Shares shall be held for a period agreements, documents and instruments set forth and described in Section 12 herein; and upon delivery of twelve (12) months following the Closing DateCash Deposit and the Certificates, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateterminate.

Appears in 1 contract

Samples: Stock Purchase Agreement (Air Brook Airport Express Inc)

Escrow. Of the Merger Cash payable pursuant to Section 1.7(a) in respect of each share of Company Capital Stock issued and outstanding immediately prior to the Effective Time, a portion thereof equal to the Escrow Percentage will, without any act of any Company Stockholder, be deposited with the Escrow Agent, such deposit to constitute an Escrow Fund (aas defined in Section 7.2) On to be governed by the terms of Section 7.2 (such Merger Cash deposited in the Escrow Fund, the “Escrow Cash”). Set forth opposite each Company Stockholder’s name on Exhibit C is a preliminary schedule showing the Escrow Cash to be contributed on behalf of each such Company Stockholder, subject to adjustment for occurrences between the date hereof, Buyer, each Seller of this Agreement and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they that affect the allocation of Merger Cash. With respect to each Company Stockholder who will be delivered to Buyer, receive Merger Cash pursuant to Section 1.7(a) that is Restricted, (i) the terms contributions on behalf of such Company Stockholder to the Escrow Cash shall be comprised of Merger Cash that is Restricted and Merger Cash that is Unrestricted in the same proportion that the total amount of Merger Cash such Company Stockholder is entitled to receive is comprised of Merger Cash that is Restricted and Merger Cash that is Unrestricted and (ii) the Restricted Merger Cash contributed on behalf of such Company Stockholder included in the Escrow Cash shall be allocated among the amounts of Restricted Merger Cash that Vest at different times in the same proportions as the total amount of such Company Stockholder’s Restricted Merger Cash that Vests at each such time. Any fraction of a cent of Merger Cash that would otherwise result from the payment of Merger Cash to be deposited into Escrow Fund pursuant to this Section 1.7(c) by virtue of ownership of outstanding shares of Company Capital Stock shall be rounded up to the nearest whole cent, and any fraction of a cent that would otherwise result from the payment of the NET Escrow Agreement. (bremaining Merger Cash which each such Company Stockholder would otherwise be entitled to receive under Section 1.7(a) On by virtue of ownership of outstanding shares of Company Capital Stock shall be rounded down to the Closing Datenearest whole cent. As soon as practicable after the Effective Time, Buyer, each Seller and an escrow agent selected by Buyer subject to and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with the provisions of Section 1.27.2, Parent shall cause to be distributed to the Escrow Agent a wire transfer in the aggregate amount of Merger Cash included in the Escrow Cash. The Escrow Shares Cash deposited in the Escrow Fund shall be held available to compensate Parent as provided in escrow until December 31Article VII. Any income, 1998 (subject to the terms gains, losses and expenses of the Escrow Agreement). The Indemnification Shares Fund shall be held reported by the parties for all income tax purposes in a period of twelve manner consistent with Proposed Treasury Regulation Section 1.468B-8. Within ten (1210) months days following the Closing Dateend of each calendar quarter, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), Parent shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value a disbursement of any Indemnification Shares paid to Buyer pursuant to the terms 2% of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on income earned for such day, the average of the closing bid and ask prices on such day) quarter on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateEscrow Fund that is treated as income of Parent.

Appears in 1 contract

Samples: Merger Agreement (Tellabs Inc)

Escrow. (a) On Employee hereby authorizes and directs the date hereofsecretary of the Company, Buyeror such other person designated by the Company from time to time, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto to transfer any Unreleased Shares which are forfeited pursuant to which Sellers shall, on the date hereof, deliver Section 2 above from Employee to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow AgreementCompany. (b) On To insure the Closing Dateavailability for delivery of Employee’s Unreleased Shares upon forfeiture under Section 2, BuyerEmployee hereby appoints the secretary, each Seller and an or any other person designated by the Company as escrow agent selected from time to time, as its attorney-in-fact to sell, assign and transfer unto the Company, such Unreleased Shares, if any, forfeited by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto Employee pursuant to which Buyer shall Section 2 and shall, upon execution of this Agreement, deliver to Escrow Agent and deposit with the number secretary of Transaction the Company, or such other person designated by the Company, the share certificate(s) representing the Unreleased Shares, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. The Unreleased Shares determined in accordance with Section 1.2. The Escrow Shares and stock assignment shall be held by the secretary in escrow until December 31escrow, 1998 (subject pursuant to the terms Joint Escrow Instructions of the Escrow Agreement)Company and Employee attached as Exhibit B hereto, until the Shares are forfeited as provided in Section 2, until such Unreleased Shares are fully released from the Forfeiture Restriction, or until such time as this Agreement no longer is in effect. The Indemnification Upon release of the Unreleased Shares from the Forfeiture Restriction, the escrow agent shall promptly deliver to Employee the certificate or certificates representing such Shares in the escrow agent’s possession belonging to Employee, and the escrow agent shall be held for a period discharged of twelve (12) months following all further obligations hereunder; provided, however, that the Closing Date, unless disbursed earlier escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to Buyer for Claims other restrictions imposed pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares orIf any assets or other securities received by or distributed to Employee with respect to, in exchange for or in substitution of such Unreleased Shares are held by the event such shares are sold, the value thereof as determined in accordance with escrow agent pursuant to this Section 1.3(b)3(b) and the Joint Escrow Instructions, such assets or other securities shall also be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and subject to the extent provided restrictions set forth in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms this Agreement and held in escrow pending release of the Escrow Agreement shall be determined by averaging Unreleased Shares with respect to which such assets or other securities relate from the closing sales price of the Parent Stock Forfeiture Restriction (or, if such Unreleased Shares are no longer outstanding, until such time as such Unreleased Shares would have been released from the Company’s Repurchase Option pursuant to this Agreement). (c) The Company, or its designee, shall not be liable for any act it may do or omit to do with respect to holding the Shares in case no reported sales take place on such day, escrow and while acting in good faith and in the average exercise of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateits judgment.

Appears in 1 contract

Samples: Stock Bonus Award Agreement (Valentis Inc)

Escrow. As the sole remedy for the indemnification obligations set forth in Article VII of this Agreement, an aggregate number of shares of Ascend Common Stock to be received by the holders of Andover Games Membership Units, allocated pro rata amongst such holders, representing five percent (a5%) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On shares of Ascend Common Stock to be outstanding immediately after the Closing Date, Buyershall be deposited into escrow (the “Escrow Shares), each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2the terms and conditions of the escrow agreement to be entered into at the Closing between Ascend, the Committee (defined below), the Representative (defined below) and Continental Stock Transfer & Trust Company (“CST&T”), as escrow agent (“Escrow Agent”), in form and substance mutually and reasonably agreed to by Ascend and Andover Games and providing for the terms contemplated by Article VII hereof (the “Escrow Agreement”). The Escrow Shares Agreement shall be held in escrow until provide that, on the 5th business day after Ascend has filed with the SEC its Annual Report on Form 10-K for the fiscal year ending December 31, 1998 2011 (the “Escrow Release Date”), the Escrow Agent shall release the Escrow Shares, less that portion thereof applied in satisfaction of or reserved with respect to indemnification claims in connection with claims made pursuant to Section 7.1(a) of this Agreement (“Escrow Claims”). Any Escrow Shares due to be released on the Escrow Release Date that continue to be held with respect to any unresolved Escrow Claim shall be delivered to the stockholders of Andover Games in the same proportions as originally deposited into escrow, promptly upon such resolution, subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Datereduction, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudif any, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the obligation associated with such resolved Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateClaim.

Appears in 1 contract

Samples: Merger Agreement (Ascend Acquisition Corp.)

Escrow. (a) On the date hereofClosing Date, Buyer, each Seller and an escrow agent selected the Escrow Amount shall be deposited by Buyer with the Escrow Agent and Sellers the Escrow Amount ("NET ESCROW AGENT"including any investment proceeds thereon) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in remain with the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until from the Closing Date at which time they will be delivered until such Escrow Amount is released to Buyer, either Seller or Buyer pursuant to Section 2.5(b) in accordance with the terms requirements of the NET Escrow Agreement. (b) On Following the Closing DateDate and upon entry of a Final Judgment in connection with the Boston Project Tax Audit, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver a copy of such Final Judgment, along with any additional certificate required under the Escrow Agreement, to the Escrow Agent and Seller, and Buyer and Seller shall promptly (and in no event later than three (3) Business Days following delivery of such Final Judgement) jointly instruct the number Escrow Agent to release (i) to Buyer by wire transfer of Transaction Shares determined immediately available funds to an account identified by Buyer in accordance with Section 1.2. The the requirements of the Escrow Shares shall be held Agreement the amount so determined by such Final Judgment as being owed by any Buyer Indemnitee or Group Company in escrow until December 31, 1998 (connection with the Boston Project Tax Audit and subject to the terms provisions of Section 2.5(c), (ii) to Seller by wire transfer of immediately available funds to an account identified by Seller in accordance with the requirements of the Escrow Agreement the balance remaining in the Escrow Account, if any. (c) Following the Closing Date and upon entry of a Final Judgment in connection with the Live Oak Bank Tax Audit, Buyer shall deliver a copy of such Final Judgment, along with any additional certificate required under the Escrow Agreement, to the Escrow Agent and Seller, and Buyer and Seller shall promptly (and in no event later than three (3) Business Days following delivery of such Final Judgement) jointly instruct the Escrow Agent to release (i) to Buyer by wire transfer of immediately available funds to an account identified by Buyer in accordance with the requirements of the Escrow Agreement the amount so determined by such Final Judgment as being owed by any Buyer Indemnitee or Group Company in connection with the Live Oak Bank Tax Audit and subject to the provisions of Section 2.5(b). The Indemnification Shares shall be held for a period , (ii) to Seller by wire transfer of twelve immediately available funds to an account identified by Seller in accordance with the requirements of the Escrow Agreement the balance remaining in the Escrow Account, if any. (12d) months If, at any time following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other the balance in the Escrow Account is less than for Claims of fraudthe Escrow Amount and the Seller receives payments on the Promissory Notes or an Earnout Amount, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), Seller shall be Buyer's sole remedy for immediately use the payment of any Losses for which Buyer may be entitled received to indemnification as and replenish the Escrow Account balance to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateAmount.

Appears in 1 contract

Samples: Membership Interest Purchase and Sale Agreement (Alternus Clean Energy, Inc.)

Escrow. (a) On the date hereof5.1 Upon execution of this Third Amendment, Buyer, each Seller and IDEC shall establish an escrow agent selected by Buyer and Sellers account with Union Bank of California, N.A. ("NET ESCROW AGENTEscrow") ). Each party including Escrow shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in abide by the form of EXHIBIT 1.3A Escrow Agreement attached hereto pursuant to which Sellers as Attachment 2. IDEC shall, on as set forth in Section 5.2, 5.3 and 5.4 below, deposit funds into Escrow to ensure payment to Nordion of the date hereofminimum purchase commitment under the Agreement as well as IDEC's obligation to [CONFIDENTIAL TREATMENT REQUESTED] of this Third Amendment, deliver to the NET Escrow Agent the Purchased Sharesor as otherwise set forth below. The Purchased Shares cost of establishing and maintaining the Escrow shall be held shared by IDEC and Nordion equally. IDEC shall have the right to direct Escrow to invest the funds in escrow until accordance with the Closing Date at which time they will be delivered to Buyer, pursuant investment guidelines attached hereto as Attachment 3. Subject to the terms of this Third Amendment, IDEC shall receive the NET Escrow Agreement. (b) On the Closing Datefull benefit of investment returns paid on funds in Escrow. Investment returns may be drawn by IDEC, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The this Third Amendment, from Escrow Shares on a quarterly basis. 5.2 Upon execution of this Third Amendment, IDEC shall be held deposit an amount equal to [CONFIDENTIAL TREATMENT REQUESTED] associated with [CONFIDENTIAL TREATMENT REQUESTED] (as such [CONFIDENTIAL TREATMENT REQUESTED] and amounts are defined in escrow until December 31, 1998 (subject Attachment 4 hereto). 5.3 IDEC shall make additional deposits into Escrow equal to the terms [CONFIDENTIAL TREATMENT REQUESTED] associated with [CONFIDENTIAL TREATMENT REQUESTED] as defined in Attachment 4. For purposes of IDEC's obligations hereunder, Nordion and IDEC agree that the deposits set forth in Attachment 4 [CONFIDENTIAL TREATMENT REQUESTED]. Nordion shall notify IDEC in writing not less than [CONFIDENTIAL TREATMENT REQUESTED] prior to the anticipated commencement of the work associated with each [CONFIDENTIAL TREATMENT REQUESTED]. During the [CONFIDENTIAL TREATMENT REQUESTED] prior to each anticipated commencement date, IDEC shall have the right to inspect the work in progress to determine if the work associated with [CONFIDENTIAL TREATMENT REQUESTED] is imminent and appropriate based on work completed. IDEC shall notify Nordion in writing not less than [CONFIDENTIAL TREATMENT REQUESTED] prior to each anticipated commencement date if IDEC in its reasonable discretion determines that the work to date is materially deficient or if commencement of work associated with [CONFIDENTIAL TREATMENT REQUESTED] is not imminent. If IDEC fails to so notify Nordion, IDEC shall make the requisite deposit into Escrow Agreement)on or prior to the anticipated commencement date of the [CONFIDENTIAL TREATMENT REQUESTED]. The Indemnification Shares Any notice by IDEC under this Section 5.3 shall be held for include a period detailed explanation of twelve (12) months following the Closing Date, unless disbursed earlier reasons why the amount associated with the [CONFIDENTIAL TREATMENT REQUESTED]is not yet payable to Buyer for Claims Nordion pursuant to this AgreementSection 5.3. Other than Upon receipt of such notice, if any, Nordion shall commence cure of any deficiency noted and shall notify IDEC upon completion. IDEC shall have [CONFIDENTIAL TREATMENT REQUESTED] following such notice to inspect the work and to determine if the work associated with the [CONFIDENTIAL TREATMENT REQUESTED] is imminent and appropriate. On or prior to expiration of such [CONFIDENTIAL TREATMENT REQUESTED] period, IDEC shall notify Nordion if IDEC in its reasonable discretion determines that the work remains materially deficient or if commencement of work associated with the [CONFIDENTIAL TREATMENT REQUESTED] is not imminent. If IDEC fails to so notify Nordion, IDEC shall make the requisite deposit into Escrow on or prior to the end of such [CONFIDENTIAL TREATMENT REQUESTED] period. Upon receipt of any notice under this second paragraph of Section 5.3, Nordion shall commence cure of any deficiency noted and reimburse IDEC for Claims its reasonable travel and other out-of-pocket expenses including the reasonable expenses and costs of fraud, any expert retained by IDEC to review Nordion's work. Nordion shall notify IDEC upon completion of the Indemnification Shares or, in work and the [CONFIDENTIAL TREATMENT REQUESTED] inspection period described above shall repeat itself until the work is completed. In the event such shares are sold, IDEC fails to make a requisite deposit into the value thereof as determined Escrow in accordance with this Section 1.3(b)5.3, shall be Buyer's sole remedy for the payment of any Losses for which Buyer may Nordion shall, on [CONFIDENTIAL TREATMENT REQUESTED] prior written notice to IDEC and Escrow, and provided IDEC has not cured such failure within such [CONFIDENTIAL TREATMENT REQUESTED], be entitled to indemnification [CONFIDENTIAL TREATMENT REQUESTED]. 5.4 After the later of (i) BLA approval or (ii) the date Nordion is capable of commercially supplying Isotope from the KRMF Facility, IDEC shall then deposit into Escrow [CONFIDENTIAL TREATMENT REQUESTED] to ensure payment to Nordion of the [CONFIDENTIAL TREATMENT REQUESTED] under the Agreement. In the event IDEC fails to make the requisite deposit into the Escrow in accordance with this Section 5.4, Nordion CONFIDENTIAL TREATMENT REQUESTED shall, upon [CONFIDENTIAL TREATMENT REQUESTED] prior written notice to IDEC and Escrow, and provided IDEC has not cured such failure within such [CONFIDENTIAL TREATMENT REQUESTED] period, be entitled to withdraw and retain all sums in Escrow (excluding investment returns), as reconciled pursuant to Section 5.6 below, and Section 2 of the Second Amendment shall be reinstated and Sections 2.1 -- 2.5, 3,1 -- 34, 4.1 -- 4.4, 5.1--5.13 and 7.4 of this Third Amendment shall no longer be applicable. 5.5 For the purposes of Sections 5.1, 5.2, 5.3 and 54 above, the remedial provisions of Section 17.4 of the Agreement shall not apply to any breach of these Sections by IDEC. 5.6 Notwithstanding anything to the extent provided contrary set forth in Article VI hereof. The value Sections 5.2, 5.3 and 54 of this Third Amendment, IDEC and Nordion agree that the amount in Escrow at any Indemnification Shares paid to Buyer time during the term of this Agreement shall not exceed [CONFIDENTIAL TREATMENT REQUESTED], as the same may be adjusted pursuant to Sections 3.3 and 3.4 above, minus cumulative [CONFIDENTIAL TREATMENT REQUESTED]. On the terms earlier of (i) the date IDEC would otherwise be required to deposit [CONFIDENTIAL TREATMENT REQUESTED] into Escrow under Section 5.4 above or [CONFIDENTIAL TREATMENT REQUESTED] plus (b) the amounts deposited into Escrow under Sections 5.2 and 5.3 exceed [CONFIDENTIAL TREATMENT REQUESTED] as the same may be adjusted pursuant to Sections 3.3 and 3.4, IDEC and Nordion shall meet to reconcile the amount in Escrow against the amount required to be in Escrow under this Third Amendment. Any amount held in Escrow which exceeds the amount required under this Third Amendment shall be immediately disbursed to IDEC. IDEC and Nordion shall also meet not less than each calendar quarter following the initial reconciliation to reconcile the amount in Escrow against the amount required in Escrow and any amount then held in Escrow which exceeds the amount required under this Third Amendment shall be immediately disbursed to IDEC. For example, if [CONFIDENTIAL TREATMENT REQUESTED] was [CONFIDENTIAL TREATMENT REQUESTED], the amount deposited in Escrow under Sections 5.2 and 5.3 was [CONFIDENTIAL TREATMENT REQUESTED], [CONFIDENTIAL TREATMENT REQUESTED] was [CONFIDENTIAL TREATMENT REQUESTED, and the [CONFIDENTIAL TREATMENT REQUESTED] had yet to be established, then upon reconciliation, IDEC would be entitled to withdraw [CONFIDENTIAL TREATMENT REQUESTED] from Escrow. (The amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Continuing this example, if during the period until the next reconciliation the [CONFIDENTIAL TREATMENT REQUESTED] requirement was reduced CONFIDENTIAL TREATMENT REQUESTED by [CONFIDENTIAL TREATMENT REQUESTED] pursuant to Section 3.3 of this Third Amendment and [CONFIDENTIAL TREATMENT REQUESTED] increased by [CONFIDENTIAL TREATMENT REQUESTED], IDEC would be entitled to withdraw [CONFIDENTIAL TREATMENT REQUESTED] from Escrow upon the next reconciliation. (The amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Further continuing this example, if the next reconciliation occurs on thc date IDEC would otherwise be required to deposit [CONFIDENTIAL TREATMENT REQUESTED] into Escrow under Section 5.4 of this Third Amendment and [CONFIDENTIAL TREATMENT REQUESTED] increased by [CONFIDENTIAL TREATMENT REQUESTED]. IDEC would not be required to deposit [CONFIDENTIAL TREATMENT REQUESTED] into Escrow, but rather would be entitled to withdraw [CONFIDENTIAL TREATMENT REQUESTED] from Escrow. (Thc amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Finally, if on the next reconciliation date, [CONFIDENTIAL TREATMENT REQUESTED] had increased by [CONFIDENTIAL TREATMENT REQUESTED], IDEC would be entitled to withdraw the remaining [CONFIDENTIAL TREATMENT REQUESTED] in Escrow and would have no further obligation to make deposits into Escrow. (The amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Since at any time following this reconciliation date [CONFIDENTIAL TREATMENT REQUESTED] would exceed the [CONFIDENTIAL TREATMENT REQUESTED], IDEC would have no further obligation to make deposits into Escrow. 5.7 In addition to Nordion's right to withdraw funds from Escrow as set forth in Sections 5.3 and 5.4 above, Nordion shell have the right to withdraw funds from Escrow as follows: (i) In the event of termination of the Escrow Agreement shall be determined Agreement: (a) by averaging the closing sales price IDEC pursuant to Sections 2.3 or 2.4 of this Third Amendment, or (b) by Nordion or IDEC pursuant to Section 17.6 of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.Agreement,

Appears in 1 contract

Samples: Third Amendment to Agreement (Idec Pharmaceuticals Corp / De)

Escrow. (a) On Holder hereby authorizes and directs the date hereof, Buyer, each Seller and an escrow agent selected person designated by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant Company to transfer the Unreleased Shares as to which Sellers shall, on the date hereof, deliver Forfeiture Option is effective from Holder to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow AgreementCompany. (b) On To insure the Closing Dateavailability for delivery of Holder’s Unreleased Shares upon forfeiture pursuant to Section 3.1, Buyer, each Seller and an Holder hereby appoints the person designated by the Company as escrow agent selected as its attorney-in-fact to sell, assign and transfer unto the Company, such Unreleased Shares, if any, forfeited pursuant to the Forfeiture Option and shall, upon execution of this Agreement, deliver and deposit with such person designated by Buyer and Sellers ("ESCROW AGENT") the Company the share certificates representing the Unreleased Shares, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. If married, Holder shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially obtain the consent of his or her spouse to this Agreement in the form of EXHIBIT 1.3B attached hereto as Exhibit B. The Unreleased Shares and stock assignment shall be held by the Company’s designee in escrow, pursuant to which Buyer the Joint Escrow Instructions of the Company and Holder attached as Exhibit C hereto, until the Forfeiture Restriction becomes effective as provided in Section 3.1, until such Unreleased Shares are vested, or until such time as this Agreement no longer is in effect. Upon vesting of the Unreleased Shares, the escrow agent shall deliver to Escrow Agent the number of Transaction Holder, upon request, the certificate or certificates representing such Shares determined in accordance with Section 1.2. The Escrow Shares the escrow agent’s possession belonging to the Holder, and the escrow agent shall be held in discharged of all further obligations hereunder; provided, however, that the escrow until December 31, 1998 (subject agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims other restrictions imposed pursuant to this Agreement. Other than . (c) The Company, or its designee, shall not be liable for Claims of fraud, any act it may do or omit to do with respect to holding the Indemnification Shares or, in escrow and while acting in good faith and in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment exercise of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateits judgment.

Appears in 1 contract

Samples: Restricted Stock Agreement (Guitar Center Inc)

Escrow. 20.1 Escrow Agent shall hold the Downpayment and all interest accrued thereon, if any, in escrow, and shall dispose of the Downpayment only in accordance with the provisions of this Article 20. Unless otherwise stated herein below, all references to the Downpayment shall include such accrued interest, if any. 20.2 Escrow Agent shall deliver the Downpayment to Seller or Purchaser, as the case may be, as follows: (a) On the date hereofto Seller, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms upon completion of the NET Escrow Agreement.Closing; (b) On to Seller, after receipt of Seller’s demand in which Seller certifies either that: (i) Purchaser has defaulted under this Agreement; or (ii) this Agreement has been otherwise terminated or canceled, and Seller is thereby entitled to receive the Closing DateDownpayment, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to but Escrow Agent the number shall not honor Seller’s demand until more than ten (10) days after Escrow Agent has given a copy of Transaction Shares determined Seller’s demand to Purchaser in accordance with Section 1.2. The 20.3, nor thereafter if Escrow Shares shall be held Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or (c) to Purchaser, after receipt of Purchaser’s demand in escrow until December 31, 1998 which Purchaser certifies either that: (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12i) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to Seller has defaulted under this Agreement. Other , or (ii) this Agreement has been otherwise terminated or canceled, and Purchaser is thereby entitled to receive the Downpayment, but Escrow Agent shall not honor Purchaser’s demand until more than for Claims ten (10) days after Escrow Agent has given a copy of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined Purchaser’s demand to Seller in accordance with this Section 1.3(b)20.3, nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon delivery of the Downpayment, Escrow Agent shall be Buyer's sole remedy for relieved of all liability hereunder with respect to the payment Downpayment. Escrow Agent shall deliver the Downpayment, at the election of any Losses for which Buyer may be the party entitled to indemnification as and to receive the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (orsame, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.by:

Appears in 1 contract

Samples: Sale Purchase Agreement (New Valley Corp)

Escrow. (a) On 2.1 The Securityholder hereby places and deposits in escrow with the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Escrowed Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant and hereby delivers to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number certificates identified in Schedule “A” representing the Escrowed Shares. If at any time and for any reason one or more replacement certificates are issued representing the Escrowed Shares or if the Escrowed Shares are converted or exchanged into shares of Transaction Shares determined another class, series or company, the Securityholder agrees to deliver such replacement certificate or certificates, or the certificates representing the shares in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31another class, 1998 (subject series or new company, to the terms of Escrow Agent. While the Escrow Agreement). The Indemnification Escrowed Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudare in escrow, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), Securityholder shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification all rights as the beneficial and registered owner of the Escrowed Shares including, without limitation, the right to vote and to receive all dividends and other distributions in respect of the extent Escrowed Shares. 2.2 The Escrowed Shares and the beneficial ownership of or any interest in, and the certificates representing, the Escrowed Shares shall not be transferred, gifted, sold, assigned, mortgaged, pledged, hypothecated, alienated, released from escrow, transferred within escrow, or otherwise dealt with in any manner except as expressly provided in Article VI hereof. Section 3. 2.3 The value of Securityholder hereby directs the Escrow Agent to retain the Escrowed Shares and the certificates representing the Escrowed Shares and not to do or cause anything to be done to release the Escrowed Shares from escrow or to allow any Indemnification Shares paid to Buyer pursuant to transfer, gift, assignment, mortgage, pledge, hypothecation or alienation thereof except as expressly provided in section 3. 2.4 The Corporation hereby acknowledges the terms and conditions of the Escrow this Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales and agrees to take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior all reasonable steps to the Closing Datefacilitate its performance.

Appears in 1 contract

Samples: Voluntary Escrow Agreement

Escrow. (a) On Within six (6) business days following execution of this Agreement, the date hereofparties shall deliver their respective closing deliveries described below into the custody of Chase Manhattan Trust Company, Buyer, each Seller and an National Association as escrow agent selected by Buyer and Sellers ("NET ESCROW AGENTEscrow Agent") ). The Company and the Seller shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") share equally in the form payment of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms any and all fees and expenses of the NET Escrow AgreementAgent. (b) On The Seller's deliveries shall include: (i) all stock certificates representing the Closing DateShares, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT"ii) shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") a duly endorsed but undated stock powers substantially in the form of EXHIBIT 1.3B EXHIBITS C-1 AND C-2 attached hereto pursuant to which Buyer shall deliver to Escrow Agent (collectively, the number "Stock Power") for the transfer of Transaction the Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms Company upon any Put Exercise or Call Exercise, and (iii) an executed copy of the Escrow Agreement). , substantially in the form attached hereto as EXHIBIT D ("Escrow Agreement") which shall function in part as irrevocable escrow instructions to the Escrow Agent. (c) The Indemnification Shares Company's deliveries shall include: (i) cash or cash equivalents in the full amount of the Exercise Price, which shall be held for deposited into a period separate account pending release of twelve such funds upon any Put Exercise or Call Exercise, and (12ii) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms an executed copy of the Escrow Agreement which shall function in part as irrevocable escrow instructions to the Escrow Agent. (d) The Company and the Seller hereby agree that upon the Escrow Agent's receipt of a Put Exercise Notice or a Call Exercise Notice, the Seller shall be determined by averaging deemed to have sold, transferred and conveyed the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior Shares to the Closing DateCompany and the Company shall be deemed to have purchased the Shares with no additional actions being required by either party to consummate such purchase and sale, except as may be otherwise provided herein.

Appears in 1 contract

Samples: Call/Put Option Agreement (California Coastal Communities Inc)

Escrow. Within [*] from the Effective Date, EMC and McDATA shall (a) On the date hereof, Buyer, each Seller and identify an escrow agent selected by Buyer (Escrow Agent) acceptable to both parties and Sellers ("NET ESCROW AGENT"b) execute an agreement with the Escrow Agent (Escrow Agreement) for the pre-arranged holding and releasing of the Software, including without limitation, the EFC Management and Service Software and any other software elements of the Products and all documentation and McDATA's source code, engineering drawings and specifications, manufacturing documentation, test procedures and associated intellectual property (collectively the Escrow Material). Within [*] from the Effective Date, McDATA shall execute also concurrently appoint and deliver an escrow agreement ("NET ESCROW AGREEMENT") in legally empower a Trustee and Administrator of said Escrow Agreement. Within [*] after the form announced general availability of EXHIBIT 1.3A hereto pursuant to which Sellers shallany of the Products, on McDATA shall deposit with the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms most current production level of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following Material, as defined in the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Escrow Agreement. Other than for Claims Thereafter, McDATA shall within thirty (30) calendar days after the release of fraudan update to the Products, deposit updated Escrow Material with the Escrow Agent. McDATA agrees to bear all costs arising out of compliance with this Section 10.10, including without limitation, the Indemnification Shares orcosts of establishing and maintaining the escrow of the Products, and of any and all documentation preparation necessary to meet the requirements of this Section. In addition to any other rights and remedies available to EMC, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment (a) of any Losses for a material breach which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer has not been cured pursuant to the terms provisions of Section 2.4 herein, (b) of proceedings in bankruptcy or insolvency invoked by or against McDATA, or in the event of the Escrow Agreement shall be determined by averaging appointment of an * Certain information on this page has been omitted and filed separately with the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior commission. Confidential treatment has been requested with respect to the Closing Dateomitted portions. Asterisks within brackets denote omissions.

Appears in 1 contract

Samples: Development Agreement (McData Corp)

Escrow. (a) On the date hereofUpon execution of this Agreement, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") Pledgor shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET deposit with Escrow Agent the Purchased Pledged Shares. The Purchased Shares , along with the aforesaid Assignment (all of which items shall hereinafter be referred to as the "Pledged Documents") to be held in escrow until for future delivery as follows: a. Escrow Agent shall deliver the Closing Date at Pledged Documents to Pledgee within ten (10) days after receiving an affidavit signed by Pledgee stating that: (i) Pledgor is in default under the Note and all periods of time within which time they will to cure such default have expired; (ii) Pledgee is accelerating the entire unpaid balance due under the Note; and (iii) Pledgee demands delivery of the Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of said affidavit. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate. b. In the event Escrow Agent has not delivered the Pledged Documents pursuant to subparagraph a above, then Escrow Agent shall deliver the Pledged Documents to Pledgor within ten (10) days after receipt of the original of the Note marked "paid in full," accompanied by instructions from Pledgor indicating that said Note has been paid in full and the Pledged Documents shall be delivered to BuyerPledgor at the address specified therein. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate. Pledgee agrees to deliver the Note to Pledgor marked "paid in full," immediately upon satisfaction thereof. c. Upon execution of this Agreement, Pledgor shall deliver to the Escrow Agent Stock Certificate Number________________, representing_________ _____________________________ shares of common stock of Centrack International, Inc. Pledgor shall further execute an endorsement/assignment of said Certificate appointing the Escrow Agent as Attorney to effectuate division and reissuance of same as follows: Initials / --------------- 1. Two Hundred Fifty Thousand (250,000) shares to Pledgor, same to be held in escrow by the Escrow Agent pursuant to the terms of the NET Escrow this Agreement. 2. One Hundred Twenty Thousand (b120,000) On shares to the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in Pledgee as consideration for the form of EXHIBIT 1.3B hereto loan being extended pursuant to the $60,000.00 Promissory Note attached hereto. 3. ________________________________shares which Buyer shall deliver be forwarded to Pledgor upon receipt by the Escrow Agent Agent. Nothing hereinabove withstanding to the contrary, until such time as the above division of the stock is accomplished, the total number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shares shall be held in escrow until December 31, 1998 (subject to the terms constitute collateral for payment of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims obligations pursuant to this Agreement. Other than for Claims Pledgor and Pledgee hereby acknowledge that the Escrow Agent is making no representations as to right or legality pertaining to the above division of fraud, the Indemnification Shares or, stock or its sale in the event such shares are soldof the default, and Pledgor and Pledgee each agree that Escrow Agent shall have no liability resulting from the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled inability to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to accomplish the terms of the Escrow this Pledge Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior due to the Closing Dateinability to divide, transfer or sell the stock. Pledgor and Pledgee each agree to indemnify and hold Escrow Agent harmless in this regard and as otherwise provided for in this Agreement.

Appears in 1 contract

Samples: Pledge and Escrow Agreement (Centrack International Inc)

Escrow. (aA) On At the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to BuyerClosing, pursuant to an Escrow Agreement to be entered into by the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") parties substantially in the form of EXHIBIT 1.3B hereto Exhibit 2.3, a portion of the Merger Consideration as shall be equal to FIVE HUNDRED THOUSAND ($500,000) DOLLARS (the "Escrow Deposit"), based upon the valuation described in Section 3.1(a) below, shall be delivered by Buyer, on behalf of the Seller, to CoreStates Bank, N.A., as escrow agent (the "Escrowee"). The Escrow Deposit shall be held to pay post-Closing adjustments and to indemnify against any claim which may be asserted, pursuant to which Buyer Sections 12.2 and 12.4 hereof. The Escrow Deposit shall deliver to Escrow Agent be held and disbursed by the number of Transaction Shares determined Escrowee in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 the following: (subject I) In the event that the Seller becomes obligated to remit IHS Stock back to Buyer pursuant to the terms post-Closing adjustments set forth in Section 2.2(b), the Escrowee shall release to Buyer that portion of the Escrow Agreement). The Indemnification Shares Deposit as shall have a value equal to the amount by which the Merger Consideration is so reduced. (II) In the event that the Buyer becomes entitled to indemnification pursuant to Section 12.2, the Escrowee shall release to Buyer that portion of the Escrow Deposit as shall be held equal in value to such indemnification. (III) If no claim for a period indemnification on the part of twelve Buyer is outstanding upon the expiration of one (121) months year following the Closing Date, unless disbursed earlier to Buyer any remaining Escrow Deposit (less any amounts offset for Claims claims pursuant to this Agreement. Other than Section 2.3(a)(i) and (ii)) shall be released to the Seller. (IV) If any claim(s) for Claims indemnification on the part of fraudBuyer is (are) outstanding upon the expiration of one (1) year following the Closing Date, then any Escrow Deposit (less any amounts offset for claims pursuant to Section 2.3(a)(i) and (ii)) (including all accrued interest thereon) remaining (after resolution of the Indemnification Shares oroutstanding claim(s) and payment in respect thereof, in the event such shares are soldif any is owing, the value thereof as determined in accordance with this Section 1.3(bshall be made), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and released to the extent provided in Article VI hereof. Seller promptly after resolution of such claim(s). (V) The value of any Indemnification Shares paid IHS Stock to be delivered to Buyer pursuant to from the terms Escrow Deposit shall be calculated based upon the average closing NYSE price of such stock for the thirty (30) business day period immediately preceding the date which is two (2) days before the date of such delivery. (B) The costs, fees and expenses of the Escrow Agreement Escrowee shall be determined borne equally by averaging the closing sales price of the Parent Stock (orBuyer, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for one hand, and the five (5) consecutive trading days prior to Seller, on the Closing Dateother hand.

Appears in 1 contract

Samples: Merger Agreement (Integrated Health Services Inc)

Escrow. A total of 183,196 shares of Parent Common Stock (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENTSHARES") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto to be issued pursuant to which Sellers shall, on the date hereof, deliver SECTION 1.7(a) hereof in respect of shares of Company Capital Stock issued and outstanding immediately prior to the NET Effective Time, will, without any act of any Company Stockholder, be deposited with the Escrow Agent the Purchased Shares. The Purchased Shares shall Agent, such deposit to constitute an Escrow Fund (as defined in SECTION 6.3 to be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to governed by the terms of SECTION 6.3. The portion of the NET Escrow Agreement. (b) On the Closing Date, Buyer, Shares contributed by each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially Company Stockholder is set forth opposite such Company Stockholder's name in the form of EXHIBIT 1.3B hereto B. With respect to each Company Stockholder who will receive Merger Shares pursuant to which Buyer shall deliver SECTION 1.7(a) that are also Restricted Merger Shares, (i) such Company Stockholder's contribution to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held comprised of Restricted Merger Shares and Unrestricted Merger Shares in the same proportions as the total number of Merger Shares such Company Stockholder is entitled to receive is comprised of Restricted Merger Shares and Unrestricted Merger Shares and (ii) the Restricted Merger Shares of such Company Stockholder included in the Escrow Shares shall be allocated among the different tranches of Restricted Merger Shares that Vest at different times in the same proportions as all of such Company Stockholder's Restricted Merger Shares are allocated among such different tranches; provided, however, that the Escrow Fund shall not include any Merger Shares that are also Restricted Merger Shares pursuant to the Preference Stock Restriction Agreements (as defined in SECTION 5.2(l)). Any fractional share that would otherwise result from the issuance of a certificate representing the shares of Parent Common Stock to be deposited into escrow until December 31pursuant to this SECTION 1.7(b) shall be rounded up to the nearest whole share, 1998 (and any fraction of a share that would otherwise result from the issuance of a certificate representing the remaining shares of Parent Common Stock which each such Company Stockholder would otherwise be entitled to receive under SECTION 1.7(a) by virtue of ownership of outstanding shares of Company Capital Stock shall be rounded down to the nearest whole share. No Merger Shares shall be deposited in the Escrow Fund with respect to the Company Options. As soon as practicable after the Effective Time, and subject to and in accordance with the terms provisions of SECTION 6.3 hereof, Parent shall cause to be distributed to the Escrow Agent a certificate or certificates representing the aggregate number of Merger Shares included in the Escrow Shares, which shall be registered in the name of the Escrow Agreement)Agent. Such shares deposited in the Escrow Fund shall be beneficially owned by the holders on whose behalf such shares were deposited in the Escrow Fund. The Indemnification Merger Shares deposited in the Escrow Fund shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier available to Buyer for Claims pursuant to this Agreementcompensate Parent as provided in ARTICLE VI. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined Until surrendered in accordance with this Section 1.3(b)SECTION 1.9, shall each -10- 15 outstanding Certificate that, prior to the Effective Time, represented shares of Company Capital Stock will be Buyer's sole remedy deemed from and after the Effective Time, for all corporate purposes, other than the payment of any Losses for which Buyer may be entitled dividends, to indemnification as and to evidence the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms ownership of the Escrow Agreement number of full shares of Parent Common Stock into which such shares of Company Capital Stock shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datehave been so converted.

Appears in 1 contract

Samples: Merger Agreement (Realnetworks Inc)

Escrow. 4.1 The Escrow Account shall be operated, and the Escrow Sum and any interest accruing on it (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT"or any part of it) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shallbe applied, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject this Clause 4. 4.2 If the Buyer makes a claim under this Agreement on or prior to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of date which is twelve (12) months following after the Closing Completion Date (the Release Date, unless disbursed earlier ) and such claim has been finally determined in favour of the Buyer in accordance with Clause 4.4(b) or 4.4(c): (a) the Warrantors’ Representative and the Buyer shall instruct the Escrow Agent to Buyer for Claims transfer a sum equal to the lower of (i) the amount of the claim and (ii) the Escrow Sum or such part of that principal sum plus any accrued interest thereon being available in the Escrow Account (after taking into account payments required to be made out of the Escrow Sum pursuant to this Agreement. Other than for Claims Clause 4) to the Buyer’s Bank Account; and (b) the balance (if any) of fraudthe Escrow Sum remaining in the Escrow Account after the transfer referred to in Clause 4.2(a) shall be retained in the Escrow Account in accordance with this Agreement and the terms and conditions of an escrow agreement substantially in the form attached to this Agreement in Schedule 8 (subject to finalisation with the Escrow Agent). 4.3 On the Release Date, the Indemnification Shares Warrantors’ Representative and the Buyer shall instruct the Escrow Agent to transfer the Escrow Sum or such part of that principal sum plus any accrued interest thereon being available in the Escrow Account (after taking into account payments required to be made out of the Escrow Sum pursuant to this Clause 4) into such bank account(s) as notified in writing by the Warrantors’ Representative to the Escrow Agent (the Release Bank Accounts), unless a bona fide claim by the Buyer under this Agreement is outstanding on the Release Date. If such claim is then outstanding: (a) a sum equal to the lower of (i) the amount of the claim (or all such claims, if more than one), and (ii) the balance remaining on the Escrow Account shall be retained out of the Escrow Sum and in the Escrow Account; (b) the Warrantors’ Representative and the Buyer shall instruct the Escrow Agent to transfer the balance (if any) on the Escrow Account to the Release Bank Accounts; and (c) any sum so retained in the Escrow Account after the Release Date in respect of any such claim shall be released to the Buyer’s Bank Account or to the Release Bank Accounts or, in part to the event such shares are soldBuyer’s Bank Account with the balance to the Release Bank Accounts, the value thereof as appropriate, as soon as practicable after that claim is finally determined in accordance with Clause 4.4. 4.4 For the purpose of this Section 1.3(bClause 4, a claim shall be regarded as finally determined if: (a) the claim is withdrawn by the Buyer in writing; (b) the Warrantors’ Representative and the Buyer so agree in writing; or (c) a competent court has awarded judgment in respect of the claim and, where relevant, the period for lodging appeal has expired without an appeal having been lodged. 4.5 Any interest which accrues on the Escrow Sum or such part of that principal sum plus any accrued interest thereon being available in the Escrow Account (after taking into account payments required to be made out of the Escrow Sum pursuant to this Clause 4) shall follow the principal amount and shall be paid to the Release Bank Accounts or to the Buyer’s Bank Account (as the case may be) at the same time as payment of the corresponding principal amount. 4.6 The Warrantors’ Representative, acting on behalf of himself and all Warrantors, and the Buyer shall: (a) on or before Completion execute an escrow agreement substantially in the form attached to this Agreement in Schedule 8 (subject to finalisation with the Escrow Agent) and procure the execution of such escrow agreement by the Escrow Agent; and (b) after Completion promptly give or join in giving all such instructions as are necessary to procure the operation of the Escrow Account, and application of the Escrow Sum and any interest accruing on it (or any part of it), in accordance with the provisions of this Clause 4. 4.7 The Buyer shall be Buyer's sole remedy for bear 50% of the payment fees and expenses of any Losses for which Buyer may the Escrow Agent and the Warrantors shall bear the other 50% of such fees and expenses. 4.8 Each Warrantor shall be entitled to indemnification as and that Warrantor’s Warranty Proportion of each sum released to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant Warrantors from the Escrow Account under this Clause 4 (rounded down to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datenearest euro).

Appears in 1 contract

Samples: Warranty Agreement (Moodys Corp /De/)

Escrow. 2.1 The Shareholder hereby places and deposits in escrow with the Escrow Agent a total of 4,355,000 exchangeable shares of the Corporation (athe “Escrowed Shares”) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver hereby delivers to the NET Escrow Agent the Purchased certificates identified in Schedule A representing the Escrowed Shares. If at any time for any reason a replacement certificate or replacement certificates are issued representing any Escrowed Shares or if any Escrowed Shares are converted or exchanged into shares of another class or series of the Corporation or shares or other securities of another corporation, the Shareholder shall deliver such replacement certificate or certificates, or the certificates representing the shares in such other class, series or corporation, to the Escrow Agent. 2.2 While the Escrowed Shares are held in escrow, the Shareholder hereby irrevocably nominates, constitutes and appoints the secretary of the Corporation, or such other individual who performs functions for the Corporation similar to those normally performed by the secretary of the Corporation (with full power of substitution), as the true and lawful attorney for the Shareholder with authority to do all things and execute and deliver, on behalf of and in the name of the Shareholder: (i) such proxies to vote (A) the Escrowed Shares at any and all meetings of the shareholders of the Corporation, and (B) shares of any other corporation held beneficially or in trust as a result of Shareholder’s ownership of such Escrowed Shares; (ii) such resolutions in writing of the shareholders of the Corporation in accordance with section 142 of the Canada Business Corporations Act; and (iii) instruct or withhold from instructing the Trustee to cast and exercise the Shareholder’s Beneficiary Votes and attend all PureRay U.S. Meetings and personally exercise, or withhold for exercising, thereat, as proxy of the Trustee, the Shareholder’s Beneficiary Votes relating to the Escrowed Shares; and, in each case, the Shareholder shall have no claim or cause of action against any party hereto or against any third party as a result of the secretary of the Corporation or such other individual so acting as its attorney. Such appointment and power of attorney, being coupled with an interest, shall not be revoked by the insolvency or bankruptcy of the Shareholder and the Shareholder hereby ratifies and confirms all actions that the secretary of the Corporation or such other individual may lawfully do or cause to be done by virtue of such appointment and power. 2.3 While the Escrowed Shares are in escrow, the Shareholder shall not be entitled, at any time and from time to time, to collect and receive any dividends or other distributions in respect of the Escrowed Shares; and the Shareholder hereby forever waives, to the fullest extent permitted by law, its entitlement to such dividends and other distributions in respect of the Escrowed Shares. 2.4 The Purchased Escrowed Shares and the beneficial ownership of or any interest in, and the certificates representing, the Escrowed Shares shall not be transferred, gifted, sold, assigned, mortgaged, pledged, hypothecated, alienated, released from escrow, transferred within escrow, or otherwise dealt with in any manner except as expressly provided in section 3 hereof. 2.5 The Shareholder hereby directs the Escrow Agent to retain the Escrowed Shares and the certificates representing the Escrowed Shares and not to do or cause anything to be done to release the Escrowed Shares from escrow or to allow any transfer, gift, assignment, mortgage, pledge, hypothecation or alienation thereof except as expressly provided in section 3 hereof. 2.6 All share certificates representing the Escrowed Shares shall be held in escrow until endorsed with the Closing Date at which time they will be delivered following legend: The securities represented by this certificate are subject to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute share purchase agreement and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined such securities may not be pledged, sold or otherwise transferred except in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms provisions of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateagreement.

Appears in 1 contract

Samples: Escrow and Share Purchase Agreement (PureRay CORP)

Escrow. The Parties agree: (a) On upon execution of this Agreement and the date hereofExchange Agreement, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, authorize Parent to deliver to the NET Escrow Agent, for deposit into the Escrow, 20,000,000 Escrow Shares and to authorize the Escrow Agent to hold in the Purchased Shares. The Purchased Escrow on behalf of each Shareholder that number of Escrow Shares shall be held in escrow until the Closing Date at which time they will be delivered set forth opposite such Shareholder’s name on Schedule A hereto, subject to Buyer, adjustment pursuant to the terms Section 2(d) of the NET Escrow this Agreement. (b) On thereafter, to authorize Parent to deliver to the Escrow Agent for deposit into the Escrow any cash and non-cash dividends and other property at any time received or otherwise distributed on, in respect of, or in exchange for, any or all of the foregoing, all securities hereafter issued in substitution for any of the foregoing, all certificates and instruments representing or evidencing such securities, all cash and non-cash proceeds of all of the foregoing property and all rights, titles, interest, privileges and preferences appertaining or incident to the Escrow Shares (each, an “Escrow Share Distribution” and together with the Escrow Shares, the “Escrow Property”). (c) to authorize the Escrow Agent to release one-sixth (1/6) of the Escrow Shares to the Shareholders, on a pro-rata basis, for every AU$1,000,000 in Financing raised by Parent at a price per share equal to or greater than the Price Requirement (the “Financing Release”). (d) to authorize the Escrow Agent to release to Parent for cancellation, such Shareholder’s pro rata amount of the total number of Escrow Shares to be cancelled (the “Cancelled Shares”), based upon such Shareholder’s proportionate share of the Escrow Shares, and a pro rata percentage of any Escrow Share Distribution (if any) to be cancelled in the event that, within three years from the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers Date ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially as defined in the form Exchange Agreement), Parent consummates one or more Financings at a price per share that is less than the Price Requirement. The total number of EXHIBIT 1.3B hereto pursuant to which Buyer Cancelled Shares shall deliver to Escrow Agent be calculated as follows: X = Y - (A)(Y) Where X = the number of Transaction Escrow Shares determined to be released for cancellation by Parent. Y = the number of shares of Parent Common Stock (and/or Parent Common Stock acquirable upon exercise or conversion of securities issued in the Financing.) A = the price per share of Parent Common Stock (and/or Parent Common Stock acquirable upon exercise or conversion of securities issued in the Financing) issued in the Financing, converted into Australian dollars in accordance with Section 1.21(d) below, if applicable. The B = Price Requirement. (e) after three years from the Closing Date (as defined in the Exchange Agreement), to authorize the Escrow Shares Agent to release to the Shareholders any remaining Escrow Shares, after giving effect to the Financing Release, if applicable. (f) for the purposes of this Agreement, the purchase price per share of Parent Common Stock for a financing conducted in a currency other than Australian dollars (“Foreign Currency”) shall be held in escrow until December 31, 1998 (subject to converted into Australian dollars based on the terms rate of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy exchange for the payment conversion of any Losses for which Buyer may be entitled to indemnification such Foreign Currency into Australian dollars as and to quoted by the extent provided in Article VI hereof. The value Reserve Bank of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging Australia on the closing sales price date of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datefinancing.

Appears in 1 contract

Samples: Escrow Agreement (Cliff Rock Resources Corp.)

Escrow. HNC will withhold from the shares of HNC Common Stock issued to each Shareholder pursuant to Section 1.1.1 and from the amount of cash otherwise payable to each Shareholder pursuant to Section 1.1.1, 10% of such shares and 10% of such cash and will deliver such withheld shares and cash (athe "ESCROW AMOUNT") On to State Street Bank and Trust Company of California, N.A., or a similar institution chosen by HNC (the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute ), to be held by the Escrow Agent as security for the indemnification obligations of the Shareholders under their Indemnity Agreements and deliver pursuant to the provisions of an escrow agreement ("NET ESCROW AGREEMENT") in substantially the form of EXHIBIT 1.3A G hereto pursuant to which Sellers shallamong HNC, on the date hereof, deliver to the NET Escrow Agent and the Purchased Shares. The Purchased Shares shall Representatives (as defined in Section 1.1.6(b)) (the "ESCROW AGREEMENT"). (a) With respect to each Founder, the Escrow Amount that will be held in escrow until withheld from the cash that would otherwise be payable to such Founder at the Closing Date at which time they will be delivered to Buyer, separate and apart from (and will not reduce the amount of) any cash that is withheld from such Founder and placed in the escrow created pursuant to the terms of the NET Liquidated Damages Escrow Agreement. (b) On The Shareholders, by executing and delivering written consents to the Closing DateMerger and this Agreement, Buyerby executing and delivering Indemnity Agreements and/or by tendering their Company Certificates as provided in Section 6.2, each Seller shall be deemed to (i) adopt and an escrow agent selected agree to be bound by Buyer the Escrow Agreement (and Sellers the indemnification provisions incorporated by reference therein), (ii) appoint the Founders as representatives of the Shareholders (the "ESCROW AGENTREPRESENTATIVES") shall execute under the Escrow Agreement and deliver an escrow agreement ("ESCROW AGREEMENT") substantially as attorneys-in-fact and agents for and on behalf of each Shareholder as provided in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement), (iii) authorize the Representatives to take any and all actions and make any and all decisions required or permitted to be taken or made by the Representatives under the Escrow Agreement, including the exercise of the power to (A) authorize delivery to HNC of amounts in escrow in satisfaction of indemnity claims as provided therein, (B) agree to negotiate and enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (C) arbitrate, resolve, settle or compromise any claim for indemnity made as provided therein and (D) take all actions necessary in the judgment of the Representatives for the accomplishment of the foregoing. The Indemnification Shares shall Representatives will have unlimited authority and power to act on behalf of each Shareholder with respect to the Escrow Agreement, the disposition, settlement or other handling of all claims governed by the Escrow Agreement, so long as all Shareholders are treated in the same manner. The Shareholders will be held for a period bound by all actions taken by the Representatives in connection with the Escrow Agreement, and HNC will be entitled to rely on any action or decision of twelve (12) months following any of two of the Closing Date, unless disbursed earlier to Buyer for Claims Representatives as constituting the action or decision of the Representatives pursuant to their authority to act on behalf of the Shareholders pursuant to the Escrow Agreement and this Agreement. Other than for Claims of fraudIn performing the functions specified in this Agreement or the Escrow Agreement, the Indemnification Shares or, Representatives will not be liable to any Shareholder for any act or omission as Representatives made in good faith and in the event such shares are sold, exercise of reasonable judgment. Any out-of-pocket costs and expenses reasonably incurred by the value thereof as determined Representatives in accordance connection with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer actions taken pursuant to the terms of the Escrow Agreement shall will be determined paid by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior Shareholders to the Closing DateRepresentatives, out of any amounts that would otherwise be distributed to the Shareholder from the escrow, pro rata in proportion to their respective percentage interests in the amount in escrow.

Appears in 1 contract

Samples: Merger Agreement (HNC Software Inc/De)

Escrow. Within [***] after the Effective Date, Open-Silicon and Customer will enter into a technology escrow agreement (the “Escrow Agreement”), with terms reasonably satisfactory to both parties, with [***] or another escrow agent designated by Customer (“Escrow Agent”). Thereafter, Open-Silicon will deposit with the Escrow Agent the following items on a regular basis (i.e., as soon as they are developed or created) during the term of this Agreement: (a) On the date hereofall Project Technology developed, Buyercreated or obtained by or for Open-Silicon, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On such additional [***] in [***] possession necessary or useful to enable a [***] or other relevant vendors to [***] and collectively with the Closing DateProject Technology, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in “Escrow Materials” Open-Silicon will use commercially reasonable efforts to ensure that the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Materials deposited with the Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2are kept current. The Escrow Shares Customer shall be held in escrow until December 31, 1998 (subject responsible for any and all payments to the terms of the Escrow Agent associated with such Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, ; provided that in the event of [***] (other than [***] of this Agreement by [***] pursuant to [***]) Open-Silicon will be responsible to pay, or if already paid by Customer, reimburse Customer for, any such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereofcosts. The value of any Indemnification Shares paid to Buyer pursuant to the terms of parties agree, and the Escrow Agreement shall will specify, that upon receipt by the Escrow Agent of a written notice from [***] that a [***] has occurred, all Escrow Materials will immediately be determined by averaging the closing sales price of the Parent Stock released and delivered to Customer. Open-Silicon hereby grants to Customer a perpetual, irrevocable, fully paid-up, royalty-free, non-exclusive, sublicenseable, worldwide, license; (ori) to use, in case no reported sales take place on such daycopy, the average of the closing bid reproduce, modify, translate, and ask prices on such day) make derivative works based on the Nasdaq SmallCap Market Manufacturing Data and (ii) distribute the Manufacturing Data (or derivatives thereof) to a contractor (e.g., a fab) to have such contractor produce a mask for the five Products and use such mask to manufacture Products. Customer hereby covenants that it will not exercise its rights under the foregoing license until the occurrence of a Trigger Event. Customer further agrees that Project Technology created or developed by Open-Silicon hereunder will not be used by Customer to perform the Services on its own or transfer the Services (5or a portion thereof) consecutive trading days prior to the Closing Datea third-party unless and until Open-Silicon agrees thereto in writing or a Trigger Event occurs.

Appears in 1 contract

Samples: Asic Design and Production Agreement (Netlist Inc)

Escrow. As security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of unvested Shares upon exercise of the Repurchase Option, the Purchaser hereby pledges and delivers for deposit with the Secretary of the Company, or such other person designated by the Company, as escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of the Company and the Purchaser: (a) On In the date hereofevent the Company and/or any assignee of the Company exercises the Repurchase Option, Buyer, each Seller Purchaser and an escrow agent selected by Buyer the Company hereby irrevocably authorize and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in direct the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent to execute the Purchased Shares. The Purchased Shares shall be held transaction contemplated by the notice of repurchase in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to accordance with the terms of the NET Escrow Agreementsuch notice. (b) On In connection with such transaction, the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent is directed (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of Transaction shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares determined in accordance to be transferred, to the Company against the delivery of the purchase price for the number of shares of stock being purchased pursuant to the exercise of the Repurchase Option. (c) Purchaser irrevocably authorizes the Company to deposit with Section 1.2. The the Escrow Agent any certificates evidencing the Shares shall to be held in by the Escrow Agent hereunder and any additions and substitutions to said shares as defined herein. Purchaser irrevocably constitutes and appoints the Escrow Agent as his attorney-in-fact and agent for the term of this escrow until December 31to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated. (d) Upon written request of the Purchaser, 1998 (but no more than once per calendar year, unless the Repurchase Option has been exercised, the Escrow Agent will deliver to the Purchaser a certificate or certificates representing so many of the Shares as are not then subject to the terms Repurchase Option. Within 180 days after Purchaser is no longer employed by the Company or any parent or subsidiary of the Company, the Escrow Agent will deliver to Purchaser a certificate or certificates representing the aggregate number of Shares sold pursuant to this Agreement and not repurchased by the Company or its assignees pursuant to exercise of the Repurchase Option. (e) If at the time of termination of this escrow, the Escrow Agent has in his possession any documents, securities, or other property belonging to the Purchaser, the Escrow Agent shall deliver such property to the Purchaser and be discharged of all further obligations hereunder. (f) The responsibilities of the Escrow Agreement)Agent hereunder shall terminate if he shall cease to be Secretary of the Company or if he shall resign by written notice to each party. The Indemnification Shares In the event of any such termination, the Company shall appoint a successor Escrow Agent. In the absence of such appointment, the President of the Company shall be the Escrow Agent. (g) It is understood and agreed that should any dispute arise with respect to the delivery, ownership, or right of possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part of said Shares until such disputes shall have been settled either by mutual written agreement or by a final order, decree, or judgment of the arbitrator, if applicable, or of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend such proceedings. (h) By signing this Agreement, the Escrow Agent becomes a period party hereto only for the purpose of twelve (12) months following executing the Closing Date, unless disbursed earlier to Buyer for Claims pursuant instructions set forth in this Section 8 and does not otherwise become a party to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Founders Restricted Stock Purchase Agreement (Turnstone Systems Inc)

Escrow. (aUnless Purchaser is a Section 2.1(c)(iii) On Purchaser, concurrent with the date signing hereof, Buyer(i) each Purchaser has (A) deposited the Subscription Amount with American Stock Transfer & Trust Company, each Seller and an escrow agent selected by Buyer and Sellers LLC, as Escrow Agent ("NET ESCROW AGENT") shall execute and deliver an escrow agreement “AST” and, collectively with any Custodians, the “Escrow Agent”), pursuant to that certain Escrow Agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A attached hereto pursuant as Exhibit H) between the Company and AST (as it may be amended or otherwise modified from time to which Sellers shalltime, on the date hereof“AST Escrow Agreement”, deliver and collectively with any Custodian Agreements, the “Escrow Agreement”) or (B) segregated cash equal to the NET Escrow Agent Subscription Amount in an account with a custodian (a “Custodian”) of funds held on behalf of an “investment company” under the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to BuyerInvestment Company Act of 1940, as amended, pursuant to binding escrow instructions (“Custodian Agreements”) for release of such funds by such Custodian to the terms Company, at the direction of the NET Company, upon the satisfaction of conditions set forth in the AST Escrow Agreement, and (ii) the Company has issued instructions to the Transfer Agent authorizing the issuance, in book-entry form, of the number of Common Shares specified on such Purchaser’s signature page hereto (or, if the Company and such Purchaser shall have agreed, as indicated on such Purchaser’s signature page hereto, that such Purchaser will receive Common Shares in certificated form, then the Company shall instead instruct the Transfer Agent to issue such specified Common Shares in certificated form (the “Stock Certificates”), or as otherwise set forth on the Stock Certificate Questionnaire included as Exhibit B-2 hereto) concurrent with the Escrow Agent’s release of the Subscription Amount to the Company pursuant to the Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Securities Purchase Agreement (Renasant Corp)

Escrow. (a) On At the date hereofClosing, Buyerthe Parent shall withhold from the shares of Parent Common Stock that would otherwise be issued in the Merger to each holder of Company Common Stock and Company Preferred Stock (the "COMPANY STOCKHOLDERS") pursuant to Section 2.1(a), a number of such shares of Parent Common Stock that is equal to fifteen percent (15%) of the aggregate number of shares of Parent Common Stock included in the Merger Consideration, and the number of such shares of Parent Common Stock withheld from each Seller Company Stockholder shall be PRO RATA and shall be rounded down to the nearest whole number of such shares (such withheld shares of Parent Common Stock being hereinafter referred to as the "ESCROW SHARES"). The Parent will deliver certificates representing such Escrow Shares to an institution reasonably acceptable to the Company, as escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute ), and, at the time prescribed in Section 2.2(b), the Company Stockholders will deliver to the Escrow Agent related stock transfer powers executed by the applicable Company Stockholders (with medallion signature guarantees if requested by the Escrow Agent), to be held by the Escrow Agent as security for the Company Stockholders' indemnification obligations under Article VIII and deliver pursuant to the provisions of an escrow agreement in substantially the form attached hereto as Exhibit C (the "ESCROW AGREEMENT") substantially to be entered into at the Closing by the Parent, the Escrow Agent and Xxxx Xxxxxxxx, as the representative of the Company Stockholders (the "ESCROW REPRESENTATIVE") under the Escrow Agreement and as the attorney-in-fact and agent for and on behalf of each Company Stockholder as provided in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2Agreement. The Escrow Shares shall be held withheld from each Company Stockholder PRO RATA in escrow until December 31, 1998 (subject the same proportion as the total number of shares of Parent Common Stock issuable to such stockholder under Section 2.1(a) bears to the terms total number of shares of Parent Common Stock issued to all Company Stockholders under Section 2.1(a). The Escrow Shares shall be represented by stock certificates issued in the names of each of the Company Stockholders in proportion to their respective interests in the Escrow Shares and shall be held by the Escrow Agent during that time period commencing on the Effective Time and ending on the first anniversary of the Effective Time or on such earlier or later date as may be provided in the Escrow Agreement (such time period being hereafter called the "ESCROW PERIOD"). (b) By their approval of the Merger, the Company Stockholders will be conclusively deemed to have consented to, approved and agreed to be bound by: (i) the indemnification provisions of Article VIII; (ii) the Escrow Agreement; (iii) the appointment of Xxxx Xxxxxxxx as the Escrow Representative; and (iv) the taking by the Escrow Representative of any and all actions and the making of any decisions required or permitted to be taken by the Escrow Representative under this Agreement and/or the Escrow Agreement, including the exercise of the power to: (I) authorize delivery to the Parent of Escrow Shares in satisfaction of indemnity claims by the Parent or any other Indemnified Person pursuant to Article VIII and/or the Escrow Agreement; (II) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (III) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (IV) take all actions necessary in the judgment of the Escrow Agreement)Representative for the accomplishment of the foregoing. The Indemnification Shares shall be held for a period Escrow Representative will have authority and power to act on behalf of twelve (12) months following each Company Stockholder with respect to the Closing DateEscrow Agreement and the disposition, unless disbursed earlier to Buyer for Claims pursuant to this settlement or other handling of all claims under Article VIII hereof or governed by the Escrow Agreement. Other than for Claims of fraud, and all rights or obligations arising under the Indemnification Shares or, Escrow Agreement so long as all Company Stockholders are treated in the event such shares are soldsame manner. The Company Stockholders will be bound by all actions taken and documents executed by the Escrow Representative in connection with the Escrow Agreement, and the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may Parent will be entitled to indemnification as rely on any action or decision of the Escrow Representative. In performing the functions specified in this Agreement and the Escrow Agreement, the Escrow Representative will not be liable to any Company Stockholder in the extent provided absence of gross negligence or willful misconduct on the part of the Escrow Representative. Any loss, liability or expense reasonably incurred without gross negligence or willful misconduct by the Escrow Representative in Article VI hereof. The value of any Indemnification Shares paid to Buyer connection with actions taken by the Escrow Representative pursuant to the terms of the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid by the Company Stockholders to the Escrow Representative PRO RATA in proportion to their respective percentage interests in the Escrow Shares. In performing the functions specified in this Agreement and the Escrow Agreement, the Escrow Representative shall be determined by averaging have reasonable access to information about the closing sales price Parent and the reasonable assistance of the Parent's officers and employees; PROVIDED, that the Escrow Representative shall treat confidentiality and not disclose any nonpublic information from or about the Parent Stock or any Parent Subsidiary to any person (or, in case no reported sales take place except on a need to know basis to individuals who agree to treat such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateinformation confidentially).

Appears in 1 contract

Samples: Merger Agreement (Metromedia Fiber Network Inc)

Escrow. (ai) On Simultaneously with the date hereofexecution and delivery of this Agreement by a Purchaser, Buyerexcept as set forth in Schedule 2.1(d), each Seller and an escrow agent selected by Buyer and Sellers such Purchaser shall promptly cause a wire transfer of immediately available funds ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"U.S. dollars) in an amount representing the form “Aggregate Purchase Price (Subscription Amount)” on such Purchaser’s signature page affixed hereto and opposite such Purchaser’s name thereon, to be paid to a non-interest bearing escrow account of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent set forth on Exhibit H attached hereto (the Purchased Shares. The Purchased Shares shall be aggregate amounts received being held in escrow until by the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent are referred to herein as the number of Transaction Shares determined “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 1.2. 2.1(d)(ii) below. (ii) The Escrow Shares Agent shall be held continue to hold the Escrow Amount in escrow until December 31, 1998 (in accordance with and subject to this Agreement, from the terms date of its receipt of the funds constituting the Escrow Amount until the soonest of: (A) in the case of the termination of this Agreement in accordance with Section 6.18, in which case, if the Escrow Agent then holds any portion of the Escrow Agreement). Amount, then: (I) the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, in accordance with written wire transfer instructions received from such Purchaser; and (II) if Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR (B) in the case of the Closing, receipt of written instructions from the Company, Whitehall and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (I) the Placement Agent Fee to the Placement Agent, (II) the fees and expenses of counsel to the Placement Agent, to such counsel, and (III) the balance of the aggregate purchase price to the Company. (iii) The Indemnification Shares Company, Whitehall and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be held deemed to be a third party beneficiary of this Section 2.1(d)) as follows: (A) The Escrow Agent: (I) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (II) is only responsible for (a) holding the Escrow Amount in escrow pending receipt of written instructions from the Company, Whitehall and the Placement Agent directing the release of the Escrow Amount, and (b) disbursing the Escrow Amount in accordance with the written instructions from the Company, Whitehall and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (a) and (b) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (III) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel; and (vi) shall be authorized to receive from the Escrow Amount, on the applicable Closing Date, its reasonable fees and expenses as counsel to the Placement Agent as set forth in Section 2.1(d)(ii)(B) above. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address. (B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. (C) The Company, Whitehall and the Purchasers hereby indemnify and hold harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, except to the extent such action, claim or proceeding is the result of the fraud, willful misconduct, bad faith or gross negligence of the Escrow Agent. (D) Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to such Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. Each of the Company, Whitehall and the Purchasers hereby expressly consents to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Company, Whitehall and the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice. (E) Escrow Agent shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, Whitehall and the Placement Agent at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of twelve ten (1210) months calendar days following the Closing Dateeffective date of resignation, unless disbursed earlier at which time, (I) if an independent successor escrow agent shall have been appointed and have accepted such appointment in a writing to Buyer the Company, Whitehall and the Purchasers, then upon written notice thereof given to the Company, Whitehall, the Placement Agent, and each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the independent successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or (II) if an independent successor escrow agent shall not have been appointed, for Claims pursuant any reason whatsoever, Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, Whitehall, the Placement Agent and each of the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company, Whitehall and the Placement Agent in form and formality satisfactory to the Escrow Agent. (F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, Escrow Agent shall have the absolute right to suspend all further performance under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, Whitehall and the Placement Agent, or otherwise. In the event that any controversy arises between the Company, Whitehall and one or more of the Purchasers or any other party with respect to this Agreement. Other than for Claims of fraudAgreement or the Escrow Amount, the Indemnification Shares orEscrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the event Escrow Amount with the clerk of a court selected by the Escrow Agent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of or in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such shares are sold, the value thereof as determined court in accordance with this Section 1.3(b)provision, shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement Agent shall thereupon be determined by averaging the closing sales price relieved of the Parent Stock all further obligations and released from all liability hereunder. (or, in case no reported sales take place on such day, the average G) The provisions of the closing bid and ask prices on such daythis Section 2.1(d) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateshall survive any termination of this Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (BTHC VII Inc)

Escrow. (a) On 1.1 The Corporation hereby places and deposits in escrow with the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Escrowed Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant and hereby delivers to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number certificates identified in Schedule “A” representing the Escrowed Shares. If at any time for any reason a replacement certificate or replacement certificates are issued representing the Escrowed Shares or if the Escrowed Shares are converted or exchanged into shares of Transaction Shares determined another class, series or company, the Corporation shall deliver such replacement certificate or certificates, or the certificates representing the shares in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31another class, 1998 (subject series or new company, to the terms of Escrow Agent. While the Escrow Agreement). The Indemnification Escrowed Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudare in escrow, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), Securityholders shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification all rights as the beneficial and registered owner of the Escrowed Shares including, without limitation, the right to vote and to receive all dividends and other distributions on the extent Escrowed Shares. 1.2 The Escrowed Shares and the beneficial ownership of or any interest in, and the certificates representing, the Escrowed Shares shall not be transferred, gifted, sold, assigned, mortgaged, pledged, hypothecated, alienated, released from escrow, transferred within escrow, or otherwise dealt with in any manner except as expressly provided in Article VI hereof. section 5. 1.3 Each of the Securityholders hereby directs the Escrow Agent to retain the Escrowed Shares and the certificates representing the Escrowed Shares and not to do or cause anything to be done to release the Escrowed Shares from escrow or to allow any transfer, gift, assignment, mortgage, pledge, hypothecation or alienation thereof except as expressly provided in section 5. 1.4 The value of any Indemnification Shares paid to Buyer pursuant to Corporation hereby acknowledges the terms and conditions of this Agreement and agrees to take all reasonable steps to facilitate its performance. 1.5 The Corporation shall pay the Escrow Agreement shall be determined by averaging Agent the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market fees for the five (5) consecutive trading days prior to the Closing Dateacting as escrow agent.

Appears in 1 contract

Samples: Escrow Agreement (Mind Medicine (MindMed) Inc.)

Escrow. (a) On Concurrently with the date hereofexecution of this Agreement, to secure the Buyer's covenants, agreements and obligations hereunder, certain of the Buyer's affiliates (the "Buyer Affiliates") shall, on behalf of the Buyer, each Seller deposit (i) $2,000,000 and (ii) the Escrow Shares duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, into escrow pursuant to an escrow agent selected by agreement in the form set forth as Exhibit 1.2-A hereto (the "Escrow Agreement"). In addition, concurrently with the execution of this Agreement, each of the Buyer and Sellers ("NET ESCROW AGENT") Affiliates shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") to the Seller a letter in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver and substance as set forth in Exhibit 1.2-B attached hereto. The Buyer hereby represents and warrants to the NET Seller that the respective Buyer Affiliate has good and marketable title to the Escrow Agent Shares so deposited into escrow by such Buyer Affiliate and that the Purchased Shares. The Purchased Escrow Shares shall be held in deposited into escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms free and clear of the NET Escrow Agreementall Liens or claims whatsoever. (b) On Such $2,000,000 and the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held by the Escrow Agent (as defined in escrow until December 31, 1998 (subject the Escrow Agreement) and released only pursuant to the terms and conditions of the Escrow Agreement). The Indemnification Seller and the Buyer agree that such $2,000,000 (including any interest earned thereon) and the Escrow Shares shall be held for a period of twelve (12) months following immediately released and paid to the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, Seller as liquidated damages in the event such shares are sold, that the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days is terminated prior to the Closing Datesolely as a result of a breach or default by the Buyer under this Agreement. The Seller and the Buyer also agree that such $2,000,000 (including any interest earned thereon) and the Escrow Shares shall be immediately released to the Buyer Affiliates if this Agreement is terminated prior to the Closing for any other reason. The Seller and the Buyer also agree that such $2,000,000 (including any interest earned thereon) and the Escrow Shares shall be released contemporaneously with the Closing as the parties mutually agree in a manner to facilitate the Closing as contemplated hereby. Each of the Seller and the Buyer shall promptly execute and deliver to the Escrow Agent joint written instructions consistent with the foregoing agreements.

Appears in 1 contract

Samples: Stock Purchase Agreement (Compass International Services Corp)

Escrow. (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares13.01. The Purchased Shares Deposit shall be held in escrow by Escrow Agent in an interest bearing account until disbursed as herein provided. Any interest accrued on the Deposit shall be paid to whichever party is entitled to the Deposit in accordance with the provisions of this Agreement. The Deposit shall be held and disbursed by Escrow Agent in the following manner: (a) to Seller at the Closing Date at which time they will be delivered upon consummation of the Closing; or (b) to BuyerSeller upon receipt by Escrow Agent of written demand therefor, stating (i) that Purchaser has defaulted in the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default or (ii) that Seller is otherwise entitled to the Deposit pursuant to the terms of this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the NET provisions of Section 13.02; or (c) to Purchaser upon receipt of written demand therefor, stating that either (i) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination, or (ii) Seller shall have defaulted in performance of Seller’s obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that Escrow AgreementAgent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of Section 13.02. Notwithstanding the foregoing, if Escrow Agent receives a written demand from Purchaser for the return of the Deposit on or before the expiration of the Due Diligence Period, then Escrow Agent shall immediately send notice thereof to Seller and comply with said demand notwithstanding any contrary instruction Escrow Agent may receive from Seller. 13.02. Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (b) On or (c) of Section 13.01 (other than a demand from Purchaser on or before expiration of the Closing DateDue Diligence Period, Buyeras provided above), each Seller and an escrow agent selected Escrow Agent shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form sending written notice of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver such objection to Escrow Agent within the number greater of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days or three (3) business days after Escrow Agent delivers a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the party who made the written demand. 13.03. In the event of any dispute between the parties regarding the Deposit, Escrow Agent shall disregard all instructions received and at its option either (i) hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of fact in writing by both Seller and Purchaser, or Escrow Agent is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of such deposit). 13.04. In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction. 13.05. Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Article 13 shall be signed by Escrow Agent, Purchaser and Seller. 13.06. Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. 13.07. Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation shall take effect; provided, however, that (i) prior to such resignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Closing DateDeposit with a court of competent jurisdiction. After such resignation, Escrow Agent shall have no further duties or liability hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Behringer Harvard Multifamily Reit I Inc)

Escrow. (a) On At or promptly following the date hereofEffective Time, BuyerParent shall instruct the Transfer Agent to deliver to the Stockholder Representative certificates evidencing the Escrow Shares issued in the name of each Company Stockholder in the amounts set forth after such Company Stockholder’s name on the Updated Schedule 2.2. Promptly following the Effective Time, each Seller and an the Stockholder Representative, upon request by Parent, shall deliver the certificates representing the Escrow Shares to a third-party escrow agent holder selected by Buyer Parent and Sellers mutually agreeable to the Stockholder Representative ("NET ESCROW AGENT") for purposes of this Agreement, the Stockholder Representative, as holder of the Escrow Shares and the third-party escrow holder selected by parent shall execute be referred to as the “Escrow Holder”). The parties agree that Parent may instruct the Transfer Agent to place stop transfer orders on the Escrow Shares for so long as they are subject to the escrow contemplated by this Section 2.5. The portion of the Escrow Shares deposited with the Escrow Holder by or on behalf of each Company Stockholder shall be determined on a pro rata basis in proportion to each Company Stockholder’s relative ownership interest in the total number of Merger Shares issued in connection with the Merger. The terms by which the Escrow Holder shall hold and deliver distribute the Escrow Shares shall be set forth in an escrow agreement ("NET ESCROW AGREEMENT"the “Escrow Agreement”) in among Escrow Holder, the form Stockholder Representative as representative of EXHIBIT 1.3A hereto pursuant to which Sellers shallthe Company Stockholders, on the date hereof, deliver to the NET Escrow Agent the Purchased Sharesand Parent. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior a customary form reasonably acceptable to the Closing Date.parties thereto and shall provide as follows:

Appears in 1 contract

Samples: Merger Agreement (Cascade Sled Dog Adventures Inc)

Escrow. (a) On At the date hereofClosing, Buyer, each Seller and cash in an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver amount equal to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they Amount will be delivered or caused to Buyerbe delivered by Buyer to SunTrust Bank, as escrow agent (the “Escrow Agent”), pursuant to the terms provisions of the NET escrow agreement in substantially the form attached as Exhibit C hereto, subject to any amendments to such form requested by the Escrow Agreement. (b) On the Closing Date, Buyer, each Seller Agent and an escrow agent selected mutually agreed to by Buyer and Sellers the Company ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2Agreement”). The Escrow Shares shall Agreement will be entered into prior to the Effective Time, by and among Buyer, the Stockholders’ Representative and the Escrow Agent, and will (i) provide Buyer with payments pursuant to Section 2.14.5(a), if applicable, from the Adjustment Escrow Amount held in an escrow until December 31account (the “Adjustment Escrow Account”), 1998 (ii) provide Buyer with payments pursuant to Section 6.21, if applicable, from the Severance Escrow Amount held in an escrow account (the “Severance Escrow Account”) and (iii) provide Buyer with recourse against the Indemnification Escrow Amount held in an escrow account (the “Indemnification Escrow Account”) by the Escrow Agent with respect to Losses and the Company Securityholders’ indemnification obligations under Article X or Article XI, subject to the terms of and conditions set forth in the Escrow Agreement and in Article X or Article XI of this Agreement). The Indemnification Shares shall be held for a period of Upon the twelve (12) months following month anniversary of the Closing (the “Release Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud”), the Indemnification Shares orEscrow Agent shall release all of the then-remaining Escrow Amount (together with all interests and earnings thereon), in less the event such shares are soldaggregate amount of Losses subject to then-pending Indemnity Claims, to the value thereof as determined Company Securityholders in accordance with this Section 1.3(b)their respective Pro Rata Shares; provided that, the amount payable in respect of Company Options shall be Buyer's sole remedy paid through the Surviving Corporation’s payroll. Except as required by applicable Law, the Parties agree that for all Tax purposes: (i) the payment right of the Company Securityholders to the Escrow Amount shall be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any Losses for which Buyer may be entitled to indemnification corresponding provision of foreign, state or local Law, as appropriate, and (ii) if and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms amount of the Escrow Agreement shall Amount is actually distributed to the Company Securityholders, interest may be determined imputed on such amount as required by averaging the closing sales price Section 483 or Section 1274 of the Parent Stock (or, in case no reported sales take place on such day, Code. All Parties hereto shall file all Tax Returns consistently with the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.foregoing. 74163855_1

Appears in 1 contract

Samples: Agreement and Plan of Merger (Cambrex Corp)

Escrow. (a) On Upon Lessee's approval or waiver of the date hereofcontingencies specified in Paragraph F, Buyer, each Seller Lessor and an Lessee shall give instructions to consummate the sale to FIRST AMERICAN TITLE CO. who shall act as escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shallholder, on the date hereofnormal and usual escrow forms then used by such escrow holder, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement.as follows: (bi) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the within five (5) consecutive trading days following Lessee's approval of the contingencies in Paragraph F, both parties shall have executed escrow instructions. Escrow shall close within fifteen (15) days following Lessee's approval of the contingencies in Paragraph P; (ii) Within three (3) days following Lessee's approval of the contingencies in Paragraph F, Lessee shall deliver to escrow holder a check for Fifty Thousand Dollars ($50,000) payable to FIRST AMERICAN TITLE CO., to be a part of the purchase price, with the balance of the purchase price in readily available funds to be deposited into escrow one (1) day prior to the Closing Dateclose of escrow; (iii) Lessor shall furnish Lessee at closing a standard owner's title insurance policy insuring Lessee in the full amount of the purchase price, subject only to those items appearing on the Title Commitment as approved by Lessee. Lessor shall convey title to the Property, including all rights and privileges appurtenant to or arising from the Property, to Lessee at closing by Lessor's special warranty deed warranting title to the Property to be fee simple absolute, free and clear of all matters, claims, liens, and encumbrances except: a. taxes not yet due and payable at closing; b. reservations in patents from the United States or the State of Arizona; and c. any other matters disclosed by the Title Commitment (or any amendments thereto) that are deemed waived or approved by Lessee as provided herein. (iv) Escrow fees shall be shared equally; (v) Interest, if any, and rents will be prorated to the close of escrow; (vi) The costs of a standard title insurance policy to be issued to Lessee shall be paid by Lessor; (vii) The parties agree to execute any additional instruction.-; as are normal and usual; (viii) All real estate transfer taxes shall be paid by Lessor.

Appears in 1 contract

Samples: Standard Industrial Lease (Solpower Corp)

Escrow. At the Closing the parties shall deposit $1,200,000 in cash (a) On such cash, together with all earnings thereon is referred to as the date hereof“Escrow Cash”), Buyerdeducted from the total Merger Consideration otherwise payable to each of the shareholders of ProMed Company on a pro-rata basis, each Seller and in an escrow agent selected by Buyer and Sellers account ("NET ESCROW AGENT"“Indemnification Escrow Account”) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until such Indemnification Escrow Agreement during the Closing period ending two (2) years from the Effective Date at which time they will be delivered to Buyer(“Escrow Period”), pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT"“Escrow Agreement”) substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject negotiated prior to the terms of Closing by ProMed Company, the Representative (as defined in Section 1.16(a) and Holdings, with an escrow agent mutually acceptable to the parties (“Escrow AgreementAgent”). The Indemnification Shares Escrow shall be held for provide a period source of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy funds for the payment indemnity obligations set forth in Section 7.2(a) of any Losses for which Buyer may be entitled to indemnification as and this Agreement and, to the extent provided in Article VI hereofSection 7.6, the indemnity obligations set forth in Section 7.2(a) of the agreement and plan of reorganization for the ProMed Pomona Acquisition (the “ProMed Pomona Acquisition Agreement”). The value of any Indemnification Shares paid to Buyer Escrow Account established pursuant to this Section 1.15 and the terms indemnification escrow account established pursuant to Section 1.15 of the ProMed Pomona Acquisition Agreement shall be collectively referred to as the “Indemnification Escrow Fund”. Except for those claims set forth in Sections 7.2(b) and Section 7.4 of the Agreement and Sections 7.2(b) and 7.4 of the ProMed Pomona Acquisition Agreement, the Indemnification Escrow Fund shall be the exclusive source of indemnity funds for claims of Holdings, Holdings Subsidiary and Surviving Corporation or their respective directors, officers, employees, agents and affiliates. Subject to Article 7, (i) on the first business day following the first anniversary of the Effective Date, the Escrow Agent shall deliver 25% of the Escrow Agreement shall be determined by averaging Cash in the closing sales price Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for indemnification and any amounts reserved against pending claims related to the Parent Stock indemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the ProMed Pomona Acquisition, to each of ProMed Company’s former shareholders, after giving effect to the Merger (or“Former Shareholders”) in the same proportions as initially deposited in the Indemnification Escrow Account, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day(ii) on the Nasdaq SmallCap Market first business day following the conclusion of the Escrow Period, the Escrow Agent shall deliver the remaining Escrow Cash in the Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for the five (5) consecutive trading days prior indemnification and any amounts reserved against pending claims related to the Closing Dateindemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the ProMed Pomona Acquisition, to each of the Former Shareholders in the same proportions as initially deposited in the Indemnification Escrow Account.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)

Escrow. (a) On the date hereof, Buyer, each Seller and an escrow agent selected Buyer hereby designate the Title Company as “Escrow Agent” to receive and hold the Deposit, and Escrow Agent agrees to act in such capacity subject to the provisions of this Section 21. Promptly upon receipt, Escrow Agent shall hold the Deposit in a demand or money market account in a federally insured financial institution approved by Buyer and Sellers ("NET ESCROW AGENT") shall execute Seller located in Philadelphia, Pennsylvania, and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to such funds may not be commingled with any other deposits held by Escrow Agent. Any interest which Sellers shall, accrues on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares Deposit shall be held in escrow until the Closing Date at which time they will deemed to be delivered to Buyer, pursuant to the terms part of the NET Escrow AgreementDeposit and disposed with the Deposit in accordance with this Section 21. (b) On receipt by Escrow Agent of a statement executed by Buyer prior to, on or after the Closing Date, Buyer, each Seller and an escrow agent selected that this Agreement has been terminated by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form as of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to right or because of a default by Seller under this Agreement, Escrow Agent the number shall within five (5) days thereafter deliver a copy of Transaction Shares determined said statement to Seller in accordance with Section 1.2. The 17 and return the Deposit to Buyer on the tenth (10th) day after receipt by Escrow Shares shall be held in escrow until December 31Agent of said statement unless Escrow Agent, 1998 (subject prior to such date, receives from Seller a statement contesting the terms accuracy of Buyer’s statement and demanding retention of the Deposit by Escrow Agreement). The Indemnification Shares shall be held for Agent. (c) On receipt by Escrow Agent of a period of twelve (12) months following statement executed by Seller prior to, on or after the Closing Date, unless disbursed earlier to that this Agreement has been terminated because of a default by Buyer for Claims pursuant to under this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), Escrow Agent shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the within five (5) consecutive trading days thereafter deliver a copy of said statement to Buyer in accordance with Section 17 and deliver the Deposit to Seller on the tenth (10th) day after receipt by Escrow Agent of said statement unless Escrow Agent, prior to such date, receives from Buyer a statement contesting the accuracy of Seller’s statement and demanding retention of the Deposit by Escrow Agent. (d) On receipt by Escrow Agent of a notice of objection from Seller or Buyer under subparagraphs (b) or (c) above, Escrow Agent shall retain the Deposit and thereafter deliver the proceeds of the Deposit to either Seller or Buyer, as Seller and Buyer may direct by a statement executed by them both, provided Escrow Agent may at any time after receiving such a statement retain the Deposit, and with notice to Seller and Buyer, surrender the Deposit to a court of competent jurisdiction in the Commonwealth of Pennsylvania for such disposition as may be directed by such court. (e) Upon delivery of the Deposit to either Seller, Buyer or a court of competent jurisdiction under and pursuant to the provisions of this Section 21, Escrow Agent shall be relieved of all liability, responsibility or obligation with respect to or arising out of the Deposit and any and all of its obligations arising therefrom. (f) The Escrow Agent is executing this Agreement for the sole purpose of agreeing to act as such in accordance with the terms of this Section 21. (g) The provisions of this Section 21 shall survive Closing Dateor the earlier termination of this Agreement.

Appears in 1 contract

Samples: Agreement to Sell and Purchase Real Estate (Kulicke & Soffa Industries Inc)

Escrow. (a) On The following shall be deposited in a segregated escrow account (the date hereof“Escrow Account”) with the Escrow Agent: (i) as the sole remedy for the indemnification obligations of the Company Indemnitors set forth in Section 7.1(a), Buyer7,500,000 of the shares of Holdco Common Stock issuable upon the Closing of the Company Merger to the Members (the “Indemnity Escrow Shares”); and (ii) as the sole means of providing for downward adjustments (if any) to the aggregate number of shares of Holdco Common Stock issued hereunder (or any related surrender of shares of Holdco Common Stock by the Members) pursuant to Section 1.5(d)(iv), each Seller an additional 1,000,000 of the shares of Holdco Common Stock issuable upon the Closing of the Company Merger to the Members (the “Adjustment Escrow Shares” and an together with the Indemnity Escrow Shares and the Adjustment Escrow Shares, the “Escrow Shares”). The Escrow Shares shall be allocated among the Members in the same proportion as their proportionate share of the Holdco Common Stock being issued hereunder, all in accordance with the terms and conditions of the escrow agreement to be entered into at the Closing between Holdco, the LIBB Representative, the Committee and Continental, as escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") “Escrow Agent”), substantially in the form of EXHIBIT 1.3A Exhibit B hereto pursuant to which Sellers shall, on (the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement”). (b) On the date that is three (3) Business Days after (i) if there are no Items of Dispute, the thirtieth (30th) calendar day after the Independent Parties’ receipt of the Closing DateNet Working Capital Statement, Buyeror (ii) if there are Items of Dispute, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form day such Items of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined Dispute are finally resolved in accordance with Section 1.2. The 1.5(d), the Escrow Agent shall release the number of Adjustment Escrow Shares (if any) to be surrendered to Holdco in accordance with Section 1.5(d) to Holdco and shall release the remainder of the Adjustment Escrow Shares to the Members in the same proportions as originally deposited into escrow. (c) No Indemnity Escrow Shares shall be held in escrow released from the Escrow Account until the date on which Holdco’s independent registered public accounting firm has issued its report relating to Holdco’s financial statements for its fiscal year ending December 31, 1998 2015 (subject the “Escrow Termination Date”). On the Escrow Termination Date, the Escrow Agent shall release to the terms Members any remaining Indemnity Escrow Shares, less the number of the Indemnity Escrow Agreement). The Indemnification Shares shall to be held for a period applied in satisfaction of twelve (12) months following the Closing Date, unless disbursed earlier resolved indemnification claims or reserved with respect to Buyer for Claims unresolved indemnification claims made prior to such date pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares orSection 7.1(a) (“Pending Claims”), in the event such shares are soldsame proportions as originally deposited into escrow. Promptly after each Pending Claim has been finally resolved, the value thereof as determined any remaining Indemnity Escrow Shares not applied in accordance satisfaction of resolved indemnification claims or reserved with this Section 1.3(b), respect to Pending Claims shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and delivered to the extent provided Members in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on same proportions as originally deposited into escrow promptly upon such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateresolution.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Cullen Agricultural Holding Corp)

Escrow. At the Second Closing, Buyers shall deposit (aor shall cause Vertex to deposit) On an aggregate amount equal to 1,000,000 shares of Vertex Common Stock, as adjusted under Section 5.02 (the date hereof"Escrow Amount"), Buyerby the delivery of a stock certificate representing in the aggregate the Escrow Amount, each Seller and in an escrow agent selected by Buyer and Sellers account (the "NET ESCROW AGENTEscrow Account") shall execute and deliver an escrow agreement established with a mutually agreed upon financial institution reasonably approved by the Parties (the "NET ESCROW AGREEMENTEscrow Agent") in the form of EXHIBIT 1.3A hereto pursuant ), to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, administered pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver conditions set forth in an escrow agreement in a form reasonably agreed upon by the parties (the "ESCROW AGREEMENTEscrow Agreement") substantially to be entered into at the Second Closing by the Parties and the Escrow Agent. The Escrow Agreement shall, among other things, provide that (1) it shall be available to cover all Claims by Buyers for indemnification under this Agreement or any downward adjustment (without duplication) in the form Closing Stock Consideration contemplated by Section 5.02 above, (2) 500,000 shares of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the Closing Consideration, less the sum of [a] the number of Transaction Shares determined shares surrendered or returned to Buyers (or Vertex) related to any paid indemnification Claims, plus [b] the number of shares covering any then outstanding indemnification Claims (including those which are final and liquidated and those which are not final and liquidated) and plus [c] the number of shares of the Vertex Common Stock used to cover any downward adjustment in accordance with the Closing Stock Consideration contemplated by Section 1.2. The Escrow Shares 5.02 above, shall be held in escrow until December 31, 1998 (subject to the terms of released from the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, Account and issued in the event such shares name of Sellers (or their Affiliates, as is designated by Sellers to Buyers and as is allowable under applicable Law) on September 15, 2015 and (3) any remaining Escrow Amount (including any interest or dividends thereon), less any amount related to any then outstanding indemnification Claims (including those which are sold, the value thereof as determined in accordance with this Section 1.3(bfinal and liquidated and those which are not final and liquidated), shall be Buyer's sole remedy for issued in the payment name of any Losses for which Buyer may be entitled Sellers (or its Affiliates, as is designated by Sellers to indemnification Buyers and as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such dayis allowable under applicable Law) on the Nasdaq SmallCap Market for eighteen (18) month anniversary of the five (5) consecutive trading days prior to the Second Closing Date.

Appears in 1 contract

Samples: Asset Purchase Agreement (Vertex Energy Inc.)

Escrow. (a) On At the date hereofClosing, Buyer, the Purchaser will withhold 10% of the Exchange Shares to be issued to each Seller Icarian Stockholder in accordance with Section 2.6(a) (rounded down to the nearest whole number of shares to be issued to such Icarian Stockholder) and an escrow agent selected by Buyer and Sellers deliver such shares (the "NET ESCROW AGENTEscrow Shares") shall execute to Xxxxxx-Xxxxxxxxx, Xxxx & XxXxxxxxx LLP (the "Escrow Agent"), as escrow agent, to be held by Escrow Agent as collateral for the Corporation's indemnification obligations under Article 10 and deliver pursuant to the provisions of an escrow agreement (the "NET ESCROW AGREEMENTEscrow Agreement") in a form to be mutually agreed by the form of EXHIBIT 1.3A parties hereto pursuant prior to which Sellers shallClosing and, on the date hereofupon such agreement, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreementattached hereto as Exhibit 2.7. (b) On The Escrow Shares will be held by the Escrow Agent from the Closing Date, Buyer, each Seller and an escrow agent selected until the date that is twelve (12) months after the Closing Date (the "Escrow Period"). Any shares of Purchaser Common Stock or other equity securities issued or distributed by Buyer and Sellers the Purchaser ("ESCROW AGENT"including securities issued upon a Capital Change) shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially with respect to the Escrow Shares in the form Escrow Period shall be added to and considered part of EXHIBIT 1.3B hereto the Escrow Shares. Cash dividends on the Escrow Shares shall be deposited with the Escrow Agent until release thereof pursuant to which Buyer shall deliver to the Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2Agreement. The Escrow Shares withheld from each Icarian Stockholder will be represented by a certificate or certificates issued in the name of such Icarian Stockholder. Each Icarian Stockholder shall be held shown as the record owner on the Purchaser's books and records of such number of Escrow Shares but, in escrow accordance with the terms of the Escrow Agreement, such Icarian Stockholder shall not have voting rights with respect to the Escrow Shares until December 31such Escrow Shares, 1998 (subject if any, are released to such Icarian Stockholder pursuant to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve . (12c) months following In the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudevent that the Merger is approved by the Icarian Stockholders as provided herein, the Indemnification Shares orIcarian Stockholders shall, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment without any further act of any Losses for which Buyer may Icarian Stockholder, be entitled deemed to indemnification as have consented to and to approved (i) the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms use of the Escrow Agreement shall be determined by averaging Shares as collateral for the closing sales price Corporation's indemnification obligations under Article 10 in the manner set forth in Article 10 and the Escrow Agreement, (ii) the appointment of Apax Partners as the representative of the Parent Stock Icarian Stockholders (orthe "Stockholder Representative") with respect to the matters set forth in Article 10 and under the Escrow Agreement and as the attorney-in-fact and agent for and on behalf of each Icarian Stockholder (other than holders of Dissenting Shares), in case no reported sales take place on such dayand the taking by the Stockholder Representative of any and all actions and the making of any decisions required or permitted to be taken by him under the Escrow Agreement (including, without limitation, the average exercise of the closing bid power to: authorize delivery to the Purchaser of Escrow Shares in satisfaction of claims by the Purchaser; agree to, negotiate, enter into settlements and ask prices on compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such day) on claims; resolve any claim made pursuant to Article 10; and take all actions necessary in the Nasdaq SmallCap Market judgment of the Stockholder Representative for the five accomplishment of the foregoing) and (5iii) consecutive trading days prior to all of the Closing Dateother terms, conditions and limitations in the Escrow Agreement.

Appears in 1 contract

Samples: Merger Agreement (Workstream Inc)

Escrow. (a) On the date hereof, Buyer, each Seller and an escrow agent selected If any amount is to be withheld by Buyer and as security for the indemnification obligations of the Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers this Article 7, Buyer shall, on pursuant to the date hereofprovisions of Sections 2.5 and 2.6, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Agent, as agent of Buyer, pursuant to the Escrow Amount, in accordance with the terms of the NET this Agreement and any Escrow Agreement. (b) On . The Sellers acknowledge that the Closing Dateamounts held by the Escrow Agent shall be contingent payments eligible to be reported under the installment method pursuant to Code Section 453 and Sellers shall have the right to make any available elections thereunder. The Escrow Agent shall hold the Escrow Amount in accordance with, Buyerand subject to, the terms and conditions of any Escrow Agreement, which shall, among other things, provide that any interest that becomes due and payable on the Escrow Amount will be paid to Sellers’ Representative, and will not be held by the Escrow Agent, whether or not there are any pending claims for indemnification pursuant to this Article 7. Promptly after the delivery to Sellers’ Representative upon the release of the Escrow Amount of any cash balance of the Escrow Amount and funds in the Escrow Account to which Sellers’ Representative is entitled under any such Escrow Agreement, Sellers’ Representative shall pay to each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially such Seller’s share of such remaining cash balances of Sellers’ Representative Reserves that have not been used to reimburse Sellers’ Representative for costs incurred in the form performance of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined their duties as Sellers’ Representative under this Agreement, pro rata in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateSellers’ respective percentage interests.

Appears in 1 contract

Samples: Stock Purchase Agreement (Walter Investment Management Corp)

Escrow. (a) On In order to assure that the date hereofTView NTSC/Scan Conversion Video Scaling ASIC chip meets the performance criteria set forth on Schedule 1.08 (the "Performance Criteria") and in order to provide for the payment of the indemnity obligations of the Stockholders pursuant to this Section 9, Buyer, each Seller and an escrow agent selected by Buyer and Sellers at the Closing all of the FOCUS Common Stock (the "NET ESCROW AGENTEscrow Amount") shall execute and deliver be deposited (or held, as appropriate) by FOCUS into an escrow agreement account (the "NET ESCROW AGREEMENTEscrow Account") in administered by ChaseMellon Shareholders Services, L.L.C. as escrow agent (the form "Escrow Agent") until such time as the Performance Criteria are met (the "Escrow Release Date"). The Stockholders hereby agree and acknowledge that the delivery of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver such amount to the NET Escrow Agent shall constitute the Purchased Sharesdelivery of such amount to the Stockholders for purposes of Section 1.05 of this Agreement, for all purposes under applicable Delaware law and for all other purposes hereunder. The Purchased Shares Escrow Agent shall hold the Escrow Account in accordance with the provisions of the Escrow Agreement. On the Escrow Release Date the Focus Common Stock shall be held in escrow until transferred by the Closing Date at which time they will be delivered to Buyer, pursuant Escrow Agent to the terms Stockholders' Representative for payment to the Stockholders in accordance with the provisions of the NET Escrow AgreementSection 1.08. (b) On In the Closing event there is, at any time prior to the Escrow Release Date, Buyeran award of an arbitrator, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with the provisions of Section 1.2. The Escrow Shares 10.03 hereof, of a claim under this Section 9, the award shall be satisfied from the FOCUS Common Stock held by the Escrow Agent. For purposes of valuing the FOCUS Common Stock in connection with any such arbitration award, each share of FOCUS Common Stock held in escrow until December 31, 1998 (subject to will be valued at the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy closing price for the payment of any Losses for which Buyer may be entitled to indemnification FOCUS Common Stock as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateNASDAQ or other exchange.

Appears in 1 contract

Samples: Merger Agreement (Focus Enhancements Inc)

Escrow. On or before the Closing Date, (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") Company shall execute and deliver an to the escrow agreement agent (the "NET ESCROW AGREEMENTEscrow Agent") identified in the form of EXHIBIT 1.3A Escrow Agreement attached hereto as Exhibit C (the "Escrow Agreement") all applicable agreements, documents, instruments and writings required pursuant to which Sellers shallSection 4.2 herein (collectively, on the date hereof"Closing Documents"), deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyerby the Company including, pursuant to without limitation, certificates for the terms number of the NET Escrow Agreement. Common Shares set forth opposite each Purchaser's name on Exhibit A, as applicable, registered in such Purchaser's name and such Purchaser's Warrants and (b) On each of the Closing DatePurchasers shall pay by wire transfer of immediately available funds into escrow in accordance with the Escrow Agreement such Purchaser's Purchase Price, Buyeras applicable, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver all applicable agreements, documents, instruments and writings required pursuant to Section 4.1, to be delivered by such Purchaser. In regard to the Closing, the Escrow Agent shall give notice (by telephone or other means) (an escrow agreement ("ESCROW AGREEMENTEscrow Agent Notice") substantially in to the form of EXHIBIT 1.3B parties hereto pursuant to which Buyer shall deliver to when the Escrow Agent has received all of the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject Closing Documents and wire transfer the funds constituting the Purchase Prices and deliver the other Closing Documents to the Company pursuant to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following As soon thereafter as is practicable on the Closing Date, unless disbursed earlier the Escrow Agent shall deliver the Company's Closing Documents to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudthe Purchasers, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy including applicable certificates for the payment of any Losses for which Buyer may be entitled to indemnification as Common Shares and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateWarrants.

Appears in 1 contract

Samples: Common Stock and Warrants Purchase Agreement (Virtual Communities Inc/De/)

Escrow. 20.1 If this Agreement is executed prior to the Closing Date, Escrow Agent shall hold the Downpayment and all interest accrued thereon, if any (collectively, the "Fund") in escrow and shall dispose of the Fund only in accordance with the provisions of this Section 20. 20.2 Escrow Agent shall deliver the Fund to Sellers or Purchaser, as the case may be, as follows: (a) On to Sellers, upon completion of the Closing; or (b) to Sellers, after receipt of Sellers' demand in which Sellers certifies either that (i) Purchaser has defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Sellers is thereby entitled to receive the Fund; but Escrow Agent shall not honor Sellers' demand until more than ten (10) days after Escrow Agent has given a copy of Sellers' demand to Purchaser in accordance with Section 20.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or (c) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (i) Sellers have 43 defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Purchaser is thereby entitled to receive the Fund; but Escrow Agent shall not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Sellers in accordance with Section 20.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Sellers within such ten (10) day period. Upon delivery of the Fund, Escrow Agent shall be relieved of all liability hereunder and with respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the party entitled to receive the same, by (i) a good, unendorsed certified check of Escrow Agent payable to the order of such party, (ii) an unendorsed official bank or cashier's check payable to the order of such party, or (iii) a bank wire transfer of immediately available funds to an account designated by such party. (a) Upon receipt of a written demand from Sellers or Purchaser under Section 20.2(b) or (c), Escrow Agent shall send a copy of such demand to the other party. Within ten (10) days after the date hereofof receiving same, Buyerbut not thereafter, each Seller the other party may object to delivery of the Fund to the party making such demand by giving a notice of objection (a "Notice of Objection") to Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the party who made the demand; and an escrow agent selected by Buyer thereafter, in its sole and absolute discretion, Escrow Agent may elect either (i) to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Sellers directing the disbursement of the Fund, in which event Escrow Agent shall disburse the Fund in accordance with such agreement; and/or ("NET ESCROW AGENT"ii) shall execute to take any and deliver an escrow agreement all actions as Escrow Agent deems necessary or desirable, in its sole and absolute discretion, to discharge and terminate its duties under this Agreement, including, without limitation, depositing the Fund into any court of competent jurisdiction and bringing any action of interpleader or any other proceeding; and/or ("NET ESCROW AGREEMENT"iii) in the form event of EXHIBIT 1.3A hereto pursuant any litigation between Sellers and Purchaser, to which Sellers shall, on deposit the date hereof, deliver to Fund with the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms clerk of the NET Escrow Agreementcourt in which such litigation is pending. (b) On If Escrow Agent is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Section 20.2(b) or (c), or Notice of Objection under Section 20.3(a)), notwithstanding anything to the Closing Datecontrary herein, BuyerEscrow Agent may hold and apply the Fund pursuant to Section 20.3(a)(i), each Seller (ii) or (iii) and an escrow agent selected may decline to take any other action whatsoever. In the event the Fund is deposited in a court by Buyer Escrow Agent pursuant to Section 20.3(a)(ii) or (iii), Escrow Agent shall be entitled to rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to disposition of the Fund, (i) Purchaser and Sellers ("ESCROW AGENT") shall execute pay the attorney's fees and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to costs incurred by Escrow Agent (which said parties shall share equally, but for which said parties shall be 44 jointly and severally liable) for any litigation in which Escrow Agent is named as, or becomes, a party and (ii) as between Purchaser and Sellers, the number non-prevailing party shall pay the reasonable attorneys' fees and costs of Transaction Shares determined the prevailing party. 20.4 Notwithstanding anything to the contrary in accordance with Section 1.2this Agreement, within one (1) business day after the date of this Agreement, Escrow Agent shall place the Downpayment in an Approved Investment. The Escrow Shares interest, if any, which accrues on such Approved Investment shall be held in escrow until December 31, 1998 (subject to the terms deemed part of the Fund; and Escrow Agreement). The Indemnification Shares Agent shall be held for a period dispose of twelve (12) months following such interest as and with the Closing Date, unless disbursed earlier to Buyer for Claims Fund pursuant to this Agreement. Other than for Claims of fraud, Escrow Agent may not commingle the Indemnification Shares or, in Fund with any other funds held by Escrow Agent. Escrow Agent may convert the event such shares are sold, Fund from the value thereof Approved Investment into cash or a non-interest-bearing demand account at an Approved Institution as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of follows: (a) at any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock time within seven (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day7) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date; or (b) if the Closing Date is accelerated or extended, at any time within seven (7) days prior to the accelerated or extended Closing Date (provided, however, that Sellers and Purchaser shall give Escrow Agent timely notice of any such acceleration or extension and that Escrow Agent may hold the Fund in cash or a non-interest-bearing deposit account if Sellers and Purchaser do not give Escrow Agent timely notice of any such adjournment). 20.5 As used herein, the term "Approved Investment" means (a) any interest-bearing demand account or money market fund in Citibank, N.

Appears in 1 contract

Samples: Purchase and Sale Agreement (New Valley Corp)

Escrow. Notwithstanding any provision of this Agreement to the contrary, the Closing of the Transaction contemplated hereunder shall be completed in escrow, with Michael A. Littman, Esq., acting ax xxxxxx xxxxx (xxe "Escrow Agent"), and shall take place at his office and any funds and all documents delivered in escrow shall be held and disposed of by the Escrow Agent in accordance with the terms and provisions of a certain escrow agreement by and among Seller, Buyer and Escrow Agent, in substantially the form attached hereto as Exhibit A (the "Escrow Agreement") and this Agreement. The Escrow Agreement shall be executed and delivered by Seller, Buyer and Escrow Agent (as defined below). In furtherance of the foregoing, the following shall apply: (a) On In lieu of delivering the date hereofPurchase Price to Seller as provided for in Section 1.3, BuyerBuyer shall deliver or cause to be delivered, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant at or prior to which Sellers shallClosing, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in for deposit into escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement, the aggregate amount of $400,000 representing the Purchase Price. (b) On In lieu of delivering to Buyer certificates for the Closing DateShares and the original Notes provided for in Section 1.4, BuyerSeller shall deliver or cause to be delivered to Escrow Agent, each Seller and an at or prior to Closing, for deposit into escrow agent selected by Buyer and Sellers ("ESCROW AGENT"pursuant to the Escrow Agreement, certificate(s) shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially registered in the form name of EXHIBIT 1.3B hereto pursuant the Seller representing the Shares, accompanied by stock powers duly endorsed in blank with a medallion signature guarantee by a national bank, and the original Notes together with a duly executed acceptable assignment. Prior to which Buyer or at Closing, Seller shall also deliver to Escrow Agent certificates registered in the number name of Transaction Shares determined the Seller representing an additional 600,000 shares of the Company's common stock ("Escrow Shares"), together with stock powers duly endorsed in blank with medallion signature guarantee, to be deposited in escrow and held in accordance with Section 1.2. The Escrow Shares 1.6(c) below. (c) At such time as all of the conditions precedent to Closing under Article VII hereof have been satisfied by the respective parties, and no party shall be held in breach of any term, warranty, representation, covenant or agreement applicable to it or him, and each party shall have made all deliveries required by each of them under this Agreement, the parties hereto shall provide written notice to Escrow Agent directing that the funds and documents deposited in escrow until December 31, 1998 (subject to be disposed of in accordance with the Escrow Agreement and the terms of this Agreement; provided, however, that the Escrow AgreementAgent shall retain the Escrow Shares in escrow to satisfy any indemnification obligations of Seller under Section 8.2 hereof and under the Assumption Agreement (as defined in Sec- tion 7.3(d) hereof) ("Indemnity Escrow"). The Indemnification Shares shall be held for a period of twelve On the date forty-five (1245) months days following the Closing Date, unless disbursed earlier to the extent that the Indemnity Escrow has not been and is not the subject of an indemnification claim under Section 8.2 hereof or under the Assumption Agreement, the Indemnity Escrow shall be released to the Seller. (d) Buyer agrees to wire transfer a total sum of $30,000 (the "Deposit") to Escrow Agent upon execution and delivery of this Agreement and the Escrow Agreement, with the Deposit to be held in escrow in accordance with the terms and conditions set forth in this Agreement and the Escrow Agreement. The Deposit shall be refunded and paid to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares that the Transaction fails to close for any reason (other than solely as a result of Buyer's failure to satisfy the conditions precedent to Closing that are soldapplicable to it under Section 7.2 or as a result of a material breach or inaccuracy of any representation, the value thereof as determined in accordance with warranty, agreement or covenant by Buyer under this Section 1.3(bAgreement), . The Deposit shall be paid to Seller in the event that the Transaction fails to close solely as a result of Buyer's sole remedy for failure to satisfy the payment conditions precedent to Closing that are applicable to it under Section 7.2 or solely as a result of a material breach or inaccuracy of any Losses for which representation, warranty, agreement or covenant by Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateunder this Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Multi Link Telecommunications Inc)

Escrow. (a) On The Restricted Stockholder hereby authorizes and directs the date hereofSecretary of the Company, Buyeror such other person designated by the Company, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") to transfer the shares of Restricted Stock which are subject to the Restrictions from the Restricted Stockholder to the Company in the form event of EXHIBIT 1.3A hereto repurchase of such shares by the Company pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, Section 2.1 or forfeiture of such shares pursuant to the terms of the NET Escrow AgreementSection 2.2. (b) On To insure the Closing Dateavailability for delivery of the Restricted Stock upon repurchase pursuant to Section 2.1 or forfeiture pursuant to Section 2.2, Buyerthe Restricted Stockholder hereby appoints the Secretary, each Seller or any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and an escrow agent selected transfer unto the Company, such shares, if any, repurchased or forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Company, or such other person designated by Buyer the Company, the share certificates representing the Restricted Stock, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Stock and Sellers ("ESCROW AGENT") stock assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Instructions of the Company and the Restricted Stockholder attached hereto as Exhibit B, until all of the Restrictions expire or shall have been removed. As a further condition to the Company’s obligations under this Agreement, the spouse of the Restricted Stockholder, if any, shall execute and deliver an to the Company the Consent of Spouse attached hereto as Exhibit C. Upon the lapse of the Restrictions on the Restricted Stock, the escrow agreement ("ESCROW AGREEMENT") substantially agent shall promptly deliver to the Restricted Stockholder the certificate or certificates representing such shares in the form escrow agent’s possession belonging to the Restricted Stockholder, and the escrow agent shall be discharged of EXHIBIT 1.3B hereto all further obligations hereunder; provided, however, that the escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims other restrictions imposed pursuant to this Agreement. Other than . (c) The Company, or its designee, shall not be liable for Claims of fraud, any act it may do or omit to do with respect to holding the Indemnification Shares or, Restricted Stock in escrow and while acting in good faith and in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment exercise of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateits judgment.

Appears in 1 contract

Samples: Restricted Stock Agreement (Cherokee Inc)

Escrow. Notwithstanding any provision of this Agreement to the contrary: (a) On In lieu of delivering to the date hereofShareholders certificates for the Preferred Shares, BuyerQorus shall deliver or cause to be delivered to Guzov Ofsink, each Seller and an LLC, as escrow agent selected by Buyer and Sellers (the "NET ESCROW AGENTEscrow Agent") shall execute and deliver for deposit into escrow pursuant to an escrow agreement ("NET ESCROW AGREEMENT") substantially in the form attached hereto as Exhibit B (the "Escrow Agreement"), the certificates representing all of EXHIBIT 1.3A hereto pursuant the Preferred Shares to which Sellers shall, on the date hereof, deliver be issued to the NET Shareholders under this Agreement other than Gateway Shares to be delivered at Closing and the shares of Common Stock issuable upon conversion of such Preferred Shares to be delivered upon conversion (collectively, the "Escrow Agent the Purchased Shares"). The Purchased Shares certificates representing the Escrow Shares, each accompanied by stock powers duly endorsed in blank, with each Shareholder's signature medallion guaranteed by a national bank or a qualified notarization agent in China shall be held in the escrow until account and disposed of by the Closing Date at which time they will be delivered to Buyer, pursuant to Escrow Agent in accordance with the terms and provisions of the NET Escrow Agreement. (b) On The Escrow Agreement shall provide, among other things, that the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent shall submit such number of the Escrow Shares to Qorus' transfer agent for cancellation based on the number of Transaction shares of common stock or common stock equivalents issued by Qorus to investors during the twelve month period following the Closing ("Financings"). Specifically, for each share of Common Stock issued by Qorus in connection with any Financings and for each share of Common Stock underlying any warrant, option or convertible security issued by Qorus in connection with any Financings, the Escrow Agent shall submit one share of Common Stock (or one Common Stock equivalent in the event the Preferred Shares determined in accordance with Section 1.2have not been converted) for cancellation. The Escrow Shares shares to be so cancelled shall be held allocated among the Shareholders in escrow until December 31, 1998 (subject proportion to the terms their respective ownership of the Escrow Agreement). The Indemnification Shares shall be held for a period of as described in Schedule 1.1 hereto. (c) On the date twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification that the Escrow Shares paid to Buyer pursuant have not been submitted for cancellation, all Escrow Shares shall be released to the terms of Shareholders in whose name the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateshares are registered.

Appears in 1 contract

Samples: Exchange Agreement (Qorus Com Inc)

Escrow. (a) On The Sellers hereby direct the date hereofBuyers to deliver in escrow, Buyerat the Closing and for the benefit of Sellers or the Buyer Indemnitees, each Seller and an as the case may be, to X.X. Xxxxxx Trust Company, National Association, or if X.X. Xxxxxx Trust Company, National Association is unwilling or unable to serve, to another escrow agent selected reasonably agreed to by Buyer Sellers and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to an agreement in the terms form attached hereto as Exhibit D (the “Escrow Agreement”), the following: (i) an amount of cash equal to the Closing Cash Escrow Amount, (ii) an amount of cash equal to ten percent (10%) of the NET Additional Closing Cash (if any), and (iii) a number of shares of Buyer Parent Common Stock equal to the Closing Stock Escrow AgreementAmount ((i), (ii) and (iii) together, the “Escrow Fund”). (b) On The Escrow Fund, including any earnings, dividends or interest thereon, shall be held and disbursed as provided in the Escrow Agreement, which shall provide, among other things, that (i) any fees or expenses payable to the escrow agent under the Escrow Agreement on account of, in connection with or related to the Escrow Fund (the “Escrow Costs”) shall be paid out of the earnings, dividends and interest on the Escrow Fund, and, to the extent that such earnings, dividends and interest are insufficient to pay the Escrow Costs, paid equally by Sellers, on the one hand, and Buyers, on the other hand; (ii) the Escrow Fund (but not any earnings, dividends or interest thereon) shall be disbursed, as set forth in Section 1.3(c), to the Buyer Indemnitees to satisfy any obligation of any Seller under Section 7.2 when the conditions for indemnification set forth in this Agreement have been satisfied; and (iii) as of the 15-month anniversary of the Closing Date, Buyer, each Seller any amount of cash and an escrow agent selected by shares of Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially Parent Common Stock remaining in the form Escrow Fund (other than any amount of EXHIBIT 1.3B hereto cash and shares of Buyer Parent Common Stock required to satisfy the maximum amount of the aggregate of any unresolved claims for indemnification as of such time), including any accrued earnings, dividends or interest thereon but less any Taxes due on account thereof and less any Escrow Costs, less any amounts then due and payable from the Escrow Fund to any Buyer Indemnitee pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 7.2 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudany such remaining cash, the Indemnification Shares or, in the event “Remaining Cash Escrow Amount” and any such remaining shares are soldof Buyer Parent Common Stock, the value thereof as determined in accordance with this Section 1.3(b“Remaining Stock Escrow Amount”), shall be Buyer's sole remedy for distributed as follows: (v) Xxxxxxx Xxxxxxxx shall receive 10.6113% of the payment Remaining Cash Escrow Amount and 44.4444% of any Losses for which Buyer may the Remaining Stock Escrow Amount; (w) Xxxx Xxxxxxxx shall receive 10.6113% of the Remaining Cash Escrow Amount and 44.4444% of the Remaining Stock Escrow Amount; (x) Xxxxxxxx Xxxxxxxx shall receive 1.3264% of the Remaining Cash Escrow Amount and 5.5556% of the Remaining Stock Escrow Amount; (y) Xxxxxx Xxxxxxxx shall receive 1.3264% of the Remaining Cash Escrow Amount and 5.5556% of the Remaining Stock Escrow Amount; and (z) Sun Mortgage Partners shall receive 76.1246% of the Remaining Cash Escrow Amount. Sellers shall be entitled to indemnification treated as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms owner of the Escrow Agreement Fund for all tax purposes. (c) If and when the Escrow Fund shall be determined by averaging disbursed to the closing sales price Buyer Indemnitees, such disbursement shall consist of an aggregate amount of cash and shares of Buyer Parent Common Stock (where such shares of Buyer Parent Common Stock are valued on the basis of the Parent Stock (or, in case no reported sales take place on Price as of such day, date of disbursement) equal to the average aggregate amount of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateindemnification obligation under Section 7.2.

Appears in 1 contract

Samples: Securities Purchase Agreement (Friedman Billings Ramsey Group Inc)

Escrow. (ai) On Simultaneously with the date hereofexecution and delivery of this Agreement by a Purchaser, Buyer, each Seller and an escrow agent selected by Buyer and Sellers such Purchaser shall promptly cause a wire transfer of immediately available funds ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of Xxxxxxxxxx Xxxxxxx PC (the form of EXHIBIT 1.3A “Escrow Agent”) set forth on Exhibit G attached hereto pursuant to which Sellers shall, on (the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be aggregate amounts received being held in escrow until by the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent are referred to herein as the number of Transaction Shares determined “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 1.2. 2.1(d)(ii) below. (ii) The Escrow Shares Agent shall be held continue to hold the Escrow Amount in escrow until December 31, 1998 (in accordance with and subject to this Agreement, from the terms date of its receipt of the funds constituting the Escrow Amount until the soonest of: (A) in the case of the termination of this Agreement in accordance with Section 6.18, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (A) the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, in accordance with written wire transfer instructions received from such Purchaser; and (B) if Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR (B) in the case of the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (A) to the Placement Agent, the fees payable to such Placement Agent, and (B) the balance of the aggregate purchase price to the Company. (iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows: (A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the authority of the Person signing or presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address. (B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the case of Escrow Agent’s gross negligence or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. (C) The Company and the Purchasers hereby indemnify and hold harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent arising out of or relating to the performance of the Escrow Agent Duties, unless such action, claim or proceeding is exclusively the result of the willful misconduct, bad faith or gross negligence of the Escrow Agent. (D) Escrow Agent has acted as legal counsel to the Company in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Company including, without limitation, with regard to any dispute arising out of this Agreement), the other Transaction Documents, the Escrow Amount or any other matter. The Indemnification Shares Purchasers hereby expressly consents to permit the Escrow Agent to represent the Company in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice. (E) Escrow Agent shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agent and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be held to hold the Escrow Amount, for a period of twelve ten (1210) months calendar days following the Closing Dateeffective date of resignation, unless disbursed earlier at which time, (I) if a successor escrow agent shall have been appointed and have accepted such appointment in a writing to Buyer both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or (II) if a successor escrow agent shall not have been appointed, for Claims pursuant any reason whatsoever, Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent. (F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, Escrow Agent shall have the absolute right to suspend all further performance under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, the Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement. Other than for Claims of fraudAgreement or the Escrow Amount, the Indemnification Shares orEscrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in its sole discretion, to deposit the event Escrow Amount with the clerk of a court selected by the Escrow Agent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of or in connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the Escrow Amount with the clerk of such shares are sold, the value thereof as determined court in accordance with this Section 1.3(b)provision, shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement Agent shall thereupon be determined by averaging the closing sales price relieved of the Parent Stock all further obligations and released from all liability hereunder. (or, in case no reported sales take place on such day, the average G) The provisions of the closing bid and ask prices on such daythis Section 2.1(d) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Dateshall survive any termination of this Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Metalico Inc)

Escrow. (a) On At the date hereofClosing, Buyerimmediately after the delivery to the Stockholders of certificates for the shares of Envirogen Common Stock to be issued in the Merger, each Seller and an (i) the Stockholders shall deliver to Summit Bank as escrow agent selected (the "Escrow Agent"), certificates representing the Escrow Shares duly endorsed in blank for transfer by Buyer the Stockholders and Sellers ("NET ESCROW AGENT"ii) shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, Envirogen will deliver to the NET Escrow Agent the Purchased SharesEscrow Money. The Purchased Escrow Shares and the Escrow Money shall be held by the Escrow Agent in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller this Section 8.02 and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement), and the Escrow Agent and the Surviving Corporation are hereby granted a security interest in the Escrow Shares and the Escrow Money, as security for any right to indemnification the Surviving Corporation may have under Section 8.01 hereof and as security for the Stockholders' timely performance of the their obligations under Section 2.05 hereof. (b) If the Surviving Corporation determines that it is entitled to be indemnified pursuant to Section 8.01 or that an amount is owed pursuant to Section 2.05 hereof, it shall so notify the Stockholders of the nature of the claim and the amount (estimated or actual) of the Loss. Subject to the rights of the Stockholders pursuant to Section 8.02(c) hereof, all amounts payable to the Surviving Corporation pursuant to Sections 8.01 and 2.05 shall be paid first in cash from the Escrow Money and then from the Escrow Shares. The Indemnification number of Escrow Shares shall to be held for a period of twelve (12) months following transferred to the Closing Date, unless disbursed earlier to Buyer for Claims Surviving Corporation pursuant to this AgreementSection 8.02(b) shall equal the remaining amount of the Loss so incurred (after any payments in cash in respect thereof from the Escrow Money) divided by the average of the daily closing prices of a share of Envirogen Common Stock as reported by the Nasdaq SmallCap Market during the period of ten trading days ending on the last trading day prior to the date of receipt by the Stockholders of the notice described in this Section 8.02(b) (the "Average Price"). Other than for Claims To the extent that the Surviving Corporation has a right to receive any of fraudthe Escrow Shares, it shall give a notice to the Stockholders and the Stockholders may, within the ten (10) day period after such notice, pay to the Escrow Agent cash in an amount equal to the amount of such Loss, and the Escrow Agent shall then in lieu of the transfer of Escrow Shares to the Surviving Corporation pay to the Surviving Corporation cash in the amount of such Loss and release to the Stockholders that number of the Escrow Shares calculated by dividing the amount of cash paid by the Stockholders to the Escrow Agent by the Average Price. (c) If the Stockholders do not deliver to the Surviving Corporation written objection to the notice described in Section 8.02(b) within twenty (20) business days after the date of such notice, the Indemnification amount of loss shall be deemed accepted by the Stockholders and the appropriate number of Escrow Shares or, in and Escrow Money shall become the event such shares are sold, property of the value thereof as determined Surviving Corporation in accordance with this Section 1.3(b8.02(b), shall be Buyer's sole remedy for . If the payment of any Losses for which Buyer may be entitled to indemnification as and Stockholders deliver to the extent provided in Article VI hereofSurviving Corporation written notice of objection within such twenty (20) business day period, then the Stockholders and the Surviving Corporation shall, within twenty (20) business days after receipt of such notice of objection, attempt to resolve the dispute. The value If the Stockholders and the Surviving Corporation fail to do so within said period of any Indemnification Shares paid to Buyer pursuant to time, the terms of the Escrow Agreement matter shall be determined by averaging a court of competent jurisdiction. (d) All Escrow Shares that have not theretofore been transferred to the closing sales price Surviving Corporation pursuant to this Section 8.02 shall be delivered by the Escrow Agent to the Stockholders promptly after the expiration of the Parent Stock Claims Period; provided that if, at the expiration of the Claims Period, the Surviving Corporation shall have given written notice to the Stockholders of a Loss (oractual or potential) hereunder, the Escrow Agent shall continue to withhold a number of Escrow Shares and Escrow Money in accordance with the terms of Section 8.02(b) above as is appropriate, in its reasonable judgment, to satisfy the amount of the Loss. Such Escrow Shares and Escrow Money shall continue to be withheld until there has been a final determination as to whether the Surviving Corporation has suffered any such Loss. (e) The Stockholders shall not transfer any of the Escrow Shares, or any interest therein, or attempt to pledge any of the Escrow Shares, so long as the Escrow Shares are held in escrow by the Escrow Agent hereunder. (f) Unless and until the Escrow Shares become the property of the Surviving Corporation as above provided, each cash dividend declared and paid with respect to such Escrow Shares shall be delivered, as paid, to the Stockholders. In the case no reported sales take place on such dayof any stock dividend, stock split, reverse stock split or similar event, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior additional shares shall be added to the Closing DateEscrow Shares. All other rights incident to the Escrow Shares, except as provided for in, or limited by, this Section 8.02, shall be in the Stockholders. With respect to the right to vote the Escrow Shares, each Stockholder shall have the right to vote the Escrow Shares to the extent of his pro rata ownership interest in such Escrow Shares.

Appears in 1 contract

Samples: Merger Agreement (Envirogen Inc)

Escrow. (a) On Notwithstanding any provision of this Agreement to the date hereofcontrary, Buyerthe Closing of the Transactions contemplated hereunder shall be completed in escrow, each Seller and an with all deliveries in connection with the Transactions hereunder being made to Xxxxxxxx Xxxx, Esq., as escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant “Escrow Agent”), to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until and disposed of by the Closing Date at Escrow Agent in accordance with the terms and provisions of a certain Deposit and Escrow Agreement by and between Seller, Buyer and Escrow Agent dated May 17, 2004, as amended, a copy of which time they will be delivered is attached hereto as Schedule 1.9 (the “Escrow Agreement”). The parties hereto agree to Buyer, pursuant amend the Escrow Agreement to the extent required to make the provisions thereof consistent with the terms of the NET escrow set forth herein. In furtherance of the escrow closing, the following shall apply: (a) In lieu of delivering the Share Purchase Price to the Stockholders as provided for in Section 1.5(a), Buyer shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the amount of $315,000, which together with the Initial Deposit (as defined in the Escrow Agreement) of $25,000 previously paid into escrow by Buyer, represents the Share Purchase Price. (b) On In lieu of delivering to Buyer certificates for the Closing DateShares provided for in Section 1.6, BuyerStockholders shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT"certificate(s) shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially registered in the form name of EXHIBIT 1.3B hereto pursuant the Stockholders representing the Shares, accompanied by stock powers duly endorsed in blank, with Stockholder’s signature medallion guaranteed by a national bank. (c) In lieu of delivering the Note Purchase Price to which the Seller as provided for in Section 1.5(b), Buyer shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the number Escrow Agreement, the Note Purchase Price. (d) In lieu of Transaction Shares determined delivering to Buyer the original Notes and the Note Assignment transferring the Notes to Buyer as provided for in Section 1.7, Seller shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the original Notes and the Note Assignment, duly executed by Seller. (e) In lieu of delivering the New Share Purchase Price to the Company as provided for in Section 1.5(c), Buyer shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the amount of $50,000 representing the New Share Purchase Price. (f) In lieu of delivering to Transfer Agent the Issuance Direction provided for in Section 1.6, the Company shall deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the Issuance Direction. (g) Concurrently with the Closing, Buyer shall, in writing, instruct the Escrow Agent to deliver to the Company the original Notes, the Note Assignment, a notice of election to convert the Notes, in substantially the form attached hereto as Exhibit C (“Buyer Conversion Notice”), with instructions from the Company directing the Transfer Agent to issue to Buyer, in connection with the conversion of the Notes, 24,577,395 shares of the Company’s common stock (“Buyer Conversion Shares”). Escrow Agent shall promptly upon Closing deliver the foregoing documents and instructions to the Transfer Agent. (h) Concurrently with the Closing, Seller shall, in writing, instruct the Escrow Agent to deliver to the Company the original Seller Notes and a notice of election to convert the Seller Notes, in substantially the form attached hereto as Exhibit D (“Seller Conversion Notice”), with instructions from the Company directing the Transfer Agent to issue to Seller, in connection with the conversion of the Seller Notes, 1,200,000 shares of the Company’s common stock (“Seller Conversion Shares”). Escrow Agent shall promptly upon Closing deliver the foregoing documents and instructions to the Transfer Agent (i) At such time as all of the conditions precedent to Closing under Article VIII hereof have been satisfied by the respective parties, and no party shall be in breach any term, warranty, representation, covenant or agreement applicable to them, each party shall have made all deliveries required by each of them under this Agreement to the Escrow Agent, and the expiration ten (10) day waiting period following the filing and mailing of the Information Statement (as defined in Section 7.5), the parties hereto shall provide written notice to Escrow Agent directing that the escrow be disposed of in accordance with Section 1.2. The the Escrow Shares shall be held in escrow until December 31Agreement and the terms of this Agreement, 1998 (subject to the terms of Indemnity Escrow Fund to be handled in accordance with Article IX hereof and the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Securities Purchase Agreement (Qorus Com Inc)

Escrow. (ai) On Subject to subsection 4.1(b)(ii), Purchaser and Seller have agreed that, to secure the date hereofindemnification obligations of Seller pursuant to Article XI, Buyerfive million dollars ($5,000,000) of the Closing Payment (the “Escrow and Blocked Account Amount”) will be deposited at the Closing with Union Bank of California, each N.A., as escrow agent (the “Escrow Agent”), and at the Closing, Purchaser, Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") the Escrow Agent shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in substantially the form of EXHIBIT 1.3A attached hereto as Exhibit A (the “First Form Escrow Agreement”) pursuant to which Sellers shall, on Purchaser shall deposit the date hereof, deliver to entire Escrow and Blocked Account Amount with the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow AgreementAgent. (bii) On After the Closing Dateexecution and delivery of this Agreement, BuyerPurchaser and Seller shall negotiate in good faith to attempt to establish an arrangement whereby Seller would be afforded additional investment flexibility with respect to four million dollars ($4,000,000) of the Escrow and Blocked Account Amount while Purchaser would be afforded security for the indemnification obligations of Seller pursuant to Article XI substantially similar to that provided by the First Form Escrow Agreement. If prior to the date that is five (5) business days before the Closing, each Seller and an escrow agent selected by Buyer Purchaser have agreed to such arrangement (the “Alternative Agreement”), then at the Closing, (A) Purchaser, Seller and Sellers ("ESCROW AGENT") the Escrow Agent shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") in substantially in the form of EXHIBIT 1.3B attached hereto as Exhibit B (the “Second Form Escrow Agreement”), pursuant to which Buyer Purchaser shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 deposit one million dollars (subject to the terms $1,000,000) of the Escrow Agreement). The Indemnification Shares and Blocked Account Amount with the Escrow Agent and (B) Purchaser, Seller and any other party thereto shall be held for a period of twelve (12) months following execute and deliver the Closing Date, unless disbursed earlier to Buyer for Claims Alternative Agreement pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), which Purchaser shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms deposit four million dollars ($4,000,000) of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateBlocked Account Amount.

Appears in 1 contract

Samples: Asset Purchase Agreement (Gametech International Inc)

Escrow. (aUnless Purchaser is a Section 2.1(c)(iii) On Purchaser, concurrent with the date signing hereof, Buyer(i) each Purchaser has (A) deposited the Subscription Amount with American Stock Transfer & Trust Company, each Seller and an escrow agent selected by Buyer and Sellers LLC, as Escrow Agent (“AST” and, collectively with any Custodians, the "NET ESCROW AGENT") shall execute and deliver an escrow agreement Escrow Agent”), pursuant to that certain Escrow Agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A attached hereto pursuant as Exhibit I) between the Company and AST (as it may be amended or otherwise modified from time to which Sellers shalltime, on the date hereof“AST Escrow Agreement”, deliver and collectively with any Custodian Agreements, the "Escrow Agreement”) or (B) segregated cash equal to the NET Escrow Agent Subscription Amount in an account with a custodian (a “Custodian”) of funds held on behalf of an “investment company” under the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to BuyerInvestment Company Act of 1940, as amended, pursuant to binding escrow instructions (“Custodian Agreements”) for release of such funds by such Custodian to the terms Company, at the direction of the NET Company, upon the satisfaction of conditions set forth in the AST Escrow Agreement, and (ii) the Company has issued instructions to the Transfer Agent authorizing the issuance, in book-entry form, of the number of Preferred Shares specified on such Purchaser’s signature page hereto (or, if the Company and such Purchaser shall have agreed, as indicated on such Purchaser’s signature page hereto, that such Purchaser will receive Preferred Shares in certificated form, then the Company shall instead instruct the Transfer Agent to issue such specified Preferred Shares in certificated form (the "Stock Certificates”), or as otherwise set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto) concurrent with the Escrow Agent’s release of the Subscription Amount to the Company pursuant to the Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Securities Purchase Agreement (Oriental Financial Group Inc)

Escrow. If the Purchaser has provided a Note for exercise of the Shares, as security for Purchaser's faithful performance of this Exercise Agreement, Purchaser agrees, immediately upon receipt of the stock certificate(s) evidencing the Shares, to deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser's spouse, if any (with the date and number of Shares left blank), to the Secretary of the Company or other designee of the Company (the "ESCROW HOLDER"), who is hereby appointed to hold such certificate(s) and Stock Powers in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Shares as are in accordance with the terms of this Exercise Agreement. Purchaser and the Company agree that Escrow Holder will not be liable to any party to this Exercise Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Exercise Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to the transactions contemplated by this Exercise Agreement. The Shares will remain in escrow so long as they are subject to the Pledge Agreement. 7. TAX CONSEQUENCES. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER'S PURCHASE OR DISPOSITION OF THE SHARES. PURCHASER REPRESENTS: (a) On the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. THAT PURCHASER HAS CONSULTED WITH ANY TAX ADVISOR THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND (b) On the Closing DateTHAT PURCHASER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. IN ADDITION TO THE FOREGOING, Buyer, each Seller and an escrow agent selected by Buyer and Sellers (THE COMPANY SHALL HAVE NO LIABILITY TO ANY PARTICIPANT OR ANY OTHER PERSON IF AN OPTION DESIGNATED AS AN INCENTIVE STOCK OPTION FAILS TO QUALIFY AS SUCH AT ANY TIME OR IF AN OPTION IS DETERMINED TO CONSTITUTE "ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateNONQUALIFIED DEFERRED COMPENSATION" WITHIN THE MEANING OF SECTION 409A OF THE CODE AND THE TERMS OF SUCH OPTION DO NOT SATISFY THE ADDITIONAL CONDITIONS APPLICABLE TO NONQUALIFIED DEFERRED COMPENSATION UNDER SECTION 409A OF THE CODE AND SECTION 7 OF THE PLAN.

Appears in 1 contract

Samples: Stock Option Exercise Agreement (Gulfwest Energy Inc)

Escrow. (a) On For purposes of payment of the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto Stockholders’ obligations pursuant to which Sellers shallArticle 9, on the date hereof, deliver an amount equal to the NET Indemnity Escrow Agent the Purchased Shares. The Purchased Shares Amount shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to distribution is required under the terms of the Escrow Agreement. With respect to each Stockholder who has delivered a Letter of Transmittal, the amount equal to such Stockholder’s portion of the Indemnity Escrow Amount, as set forth in the Estimated Statement, associated with the shares of capital stock of the Company owned of record by such Stockholder shall be allocated to such Stockholder’s escrow account maintained pursuant to the Escrow Agreement for indemnification purposes, such amount to be adjusted as set forth in the Escrow Agreement (each, an “Indemnity Escrow Account”), it being understood that the Indemnity Escrow Amount shall consist of: (i) with respect to Accredited Holders, solely Stock Merger Consideration and (ii) with respect to Non-Accredited Holders, solely Cash Merger Consideration. The Indemnification Shares shall be held for a period approval of twelve this Agreement by the Stockholders will constitute their approval of the terms and conditions of the Escrow Agreement, which is an integral part of the Transaction, and the appointment of the Stockholder Representative. (12b) months following The parties to this Agreement acknowledge and agree that (i) the shares of Parent Common Stock consisting of the portion of the Indemnity Escrow Amount allocable to Accredited Holders and (ii) the cash consisting of the portion of the Indemnity Escrow Amount allocable to Non-Accredited Holders, in each case, are being deemed delivered by the Parent to the Stockholder on or promptly after the Closing Date, unless disbursed earlier after which each Stockholder who has delivered a Letter of Transmittal is deemed to Buyer for Claims pursuant to this Agreement. Other than for Claims immediately deposit its pro rata portion of fraud, the Indemnification Shares or, in Indemnity Escrow Amount based on the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and Merger Consideration payable to the extent provided in Article VI hereof. The value Stockholders who have delivered Letters of any Indemnification Shares paid to Buyer Transmittals with the Escrow Agent pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateAgreement.

Appears in 1 contract

Samples: Merger Agreement (Enernoc Inc)

Escrow. As security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of Nonvested Shares upon the Event of Resale, Holder hereby pledges and delivers for deposit with the Secretary of M Corp., or such other person designated by M Corp., as escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of M Corp. and Holder: (a) On Upon the date hereofoccurrence of the Event of Resale, Buyer, each Seller Holder and an escrow agent selected by Buyer M Corp. hereby irrevocably authorize and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in direct the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent to consummate the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms repurchase of the NET Escrow Nonvested Shares in accordance with this Agreement. (b) On In connection with the Closing DateEvent of Resale, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent is directed (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of Transaction shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares determined in accordance with Section 1.2. The Escrow Shares shall to be held in escrow until December 31transferred, 1998 (subject to M Corp. against the terms delivery of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy purchase price for the payment number of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Nonvested Shares paid to Buyer being purchased pursuant to the terms Event of Resale. (c) Holder irrevocably authorizes M Corp. to deposit with the Escrow Agreement shall Agent any certificates evidencing the Restricted Shares to be determined held by averaging the closing sales price Escrow Agent hereunder and any additions and substitutions to said shares as defined herein. Holder irrevocably constitutes and appoints the Escrow Agent as Holder's attorney-in-fact and agent for the term of this escrow to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated. (d) Upon the Parent Stock Vesting Expiration Date or promptly following the written request of Holder (or, but in case no reported sales take place on event later than five business days following receipt of such dayrequest), the average Escrow Agent will deliver to Holder (or the assignee or the estate of Holder, as the closing bid case may be) a certificate or certificates representing the Vested Shares. (e) If at the time of termination of this escrow, the Escrow Agent has in the Escrow Agent's possession any documents, securities, or other property belonging to Holder, the Escrow Agent shall deliver such property to Holder and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datebe discharged of all further obligations hereunder.

Appears in 1 contract

Samples: Restricted Stock Agreement (Mitel Corp)

Escrow. Subject to adjustment under Section 1.11, ninety percent (90%) of the Units issuable to the Glycosan Stockholders (other than holders of Dissenting Shares) shall be delivered to the Glycosan Stockholders as partial payment of the Merger Consideration, and ten percent (10%) of the Units issuable in the Merger shall be issued and held in escrow (the Escrow Units) by Xxxxx Fargo Bank, National Association (Escrow Agent) until the later of (i) the expiration of 180 days following the Closing Date (the Escrow Termination Date); and (ii) the date on which all claims under Section 1.11 in respect of which a claim notice has been issued before the Escrow Termination Date (the Escrow Claim) has been resolved. An Escrow Claim shall not be deemed to have been resolved until (a) On Glycosan and OrthoCyte have notified the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent in writing that the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to BuyerEscrow Claim has been resolved, pursuant to the terms of the NET Escrow Agreement. or (b) the Escrow Claim has been resolved by a final court judgment or arbitration award. On or before the Closing Date, BuyerOrthoCyte and Glycosan, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") Xxxxxx X. Xxxxxx as Representative of the Glycosan Stockholders, shall execute and deliver enter into an escrow agreement ("ESCROW AGREEMENT") with Escrow Agent, in substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 attached as Exhibit D (subject to the terms of the Escrow Agreement). OrthoCyte and Glycosan agree that the Escrow Agreement shall provide for the delivery of Escrow Shares out of escrow in the manner provided in this Section and in Section 1.11 of this Agreement. The Indemnification Shares Escrow Agreement shall be held for contain a period provision under which OrthoCyte and Glycosan agree that, where a resolution of twelve (12) months any dispute between the Parties results in an award or judgment from arbitration or any other legal proceeding in accordance with the provisions of Section 1.11, the Escrow Agent shall release the Escrow Units pursuant to, and following the Closing Datereceipt of, unless disbursed earlier distribution instructions that are consistent with the award or judgment, delivered to Buyer for Claims the Escrow Agent by the prevailing Party or Parties. The number of Units to be placed in escrow pursuant to this Agreement. Other than for Claims of fraud, Section 1.9 and the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall Escrow Agreement will initially be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as withheld (and subsequently dispersed to the extent provided in Article VI hereof. The value of any Indemnification Shares paid or allowed under the terms hereof and the Escrow Agreement) from the payment to Buyer pursuant be made to the terms of Glycosan Stockholders pro rata in accordance with their respective individual interests in the Merger Consideration. All costs and expenses incurred for the Escrow Agreement Agent or otherwise in connection with the Escrow shall be determined borne by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid BioTime and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateOrthoCyte.

Appears in 1 contract

Samples: Merger Agreement (Biotime Inc)

Escrow. (a) On Upon receipt thereof, Winter Harbor shall deposit in an interest bearing escrow (the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENTEscrow") shall execute the Purchase Price and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant those securities issued to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, Winter Harbor pursuant to the terms Securities Exchange Agreement (such securities and any additional or other shares or securities or property into which such securities are converted or for which such securities are exchanged including through any reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, or other transaction being the "Issued Securities"). The Escrow shall terminate, and the remaining contents thereof transferred to Winter Harbor, free and clear of any claim, liens, encumbrances by Purchaser or any Purchaser Indemnified Party, upon the first occurrence of an Escrow Termination Event. An Escrow Termination Event shall have occurred upon the earlier of (i) the end of the NET Escrow 540th day after the date of this Agreement, if during such period no Red Cube AG Claim premised upon the Red Cube AG Securities Purchase Agreement has been initiated (other than a claim in connection with the mediation currently pending before the American Arbitration Association), and (ii) the final resolution or settlement of all claims brought against Winter Harbor or Purchaser before the 540th day after the date of this Agreement that could result in potentially indemnifiable losses related to any Red Cube AG Claim. (b) On Winter Harbor and Purchaser acknowledge that as a result of the Closing Datetransaction contemplated by this Agreement, Buyerthere is a risk that Purchaser or a Purchaser Indemnified Party may be exposed to (i) Losses resulting from a determination and order by a court of competent jurisdiction, each Seller and an escrow agent selected by Buyer and Sellers arbitral panel or other adjudicatory entity that, pursuant to the Red Cube AG Securities Purchase Agreement, Red Cube AG is entitled to the transfer of ownership from Purchaser of all or substantially all the Covered Securities (a "ESCROW AGENTSpecific Performance Claim") shall execute or (ii) Losses premised upon the Red Cube AG Securities Purchase Agreement and deliver which arise from a Red Cube AG Claim which is not a Specific Performance Claim (a "Red Cube Damage Claim"). If, prior to the occurrence of an escrow agreement ("ESCROW AGREEMENT"Escrow Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Specific Performance Claim or a claim under Section 6.1(a) substantially above, then Winter Harbor shall, solely out of and up to a maximum of the Issued Securities and Purchase Price deposited in the form Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with such Specific Performance Claim or claim under Section 1.26.1(a) above. The Escrow Shares shall be held in escrow until December 31If, 1998 (subject prior to the terms occurrence of an Escrow Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Red Cube Damage Claim, then Winter Harbor shall, solely out of and up to a maximum of the Escrow Agreement)Issued Securities deposited in the Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of such Red Cube Damage Claim. The Indemnification Shares Winter Harbor's total aggregate liability for all Specific Performance Claims and all claims under Section 6.1(a) above shall be held not exceed the loss of its right to the Issued Securities and Purchase Price deposited in the Escrow. Winter Harbor's total aggregate liability for all Red Cube Damage Claims shall not exceed the loss of its right to the Issued Securities deposited in the Escrow. -6 (c) All Losses properly due a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims Purchaser or Purchaser Indemnified Person pursuant to this Section 6.3, Section 6.1 and Section 6.2 (including, without limitation, reimbursement of attorneys' or other professional fees arising out of article VI of this Agreement) shall first be satisfied by transferring to Purchaser or the applicable Purchaser Indemnified Party a number of Issued Securities determined by dividing the applicable Loss by the then current market price (as calculated by the average closing price for I-Link common stock for the most recent ten (10) days upon which such securities traded) of such shares. Other than for Claims In the event that the total number of fraud, the Indemnification Shares or, Issued Securities then deposited in the event Escrow is insufficient to satisfy the applicable Losses, and solely where such shares are sold, the value thereof as determined in accordance with this Losses arise exclusively and solely from a Red Cube Specific Performance Claim or from a claim under Section 1.3(b6.1(a), any shortfall shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and satisfied by transferring to the extent provided in Article VI hereof. The value of any Indemnification Shares paid Purchaser or applicable Purchaser Indemnified Person, a portion, up to Buyer pursuant to the terms a maximum of the Escrow Agreement shall be determined by averaging the closing sales price total Purchase Price, of the Parent Stock (or, cash proceeds then deposited in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateEscrow.

Appears in 1 contract

Samples: Securities Purchase Agreement (Winter Harbor LLC)

Escrow. (a) On One day following the date hereofexecution and delivery of this Agreement by an Investor, Buyer, each Seller and an escrow agent selected by Buyer and Sellers such Investor shall promptly cause a wire transfer of immediately available funds ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"U.S. dollars) in an amount representing such Investor’s Subscription Amount to be paid to a non-interest bearing escrow account of Escrow, LLC (the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on “Escrow Agent”) (the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be aggregate amounts received being held in escrow until by the Closing Date at which time they will be delivered Escrow Agent are referred to Buyer, pursuant to herein as the terms of “Escrow Amount”). The Escrow Agent shall hold the NET Escrow AgreementAmount in escrow in accordance with Section 3.3(b) below. (b) On The Escrow Agent shall continue to hold the Closing DateEscrow Amount in escrow in accordance with and subject to this Agreement, Buyer, each Seller and an escrow agent selected by Buyer and Sellers from the date of its receipt of the funds constituting the Escrow Amount until the soonest of: ("ESCROW AGENT"i) shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form case of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number termination of Transaction Shares determined this Agreement in accordance with Section 1.2. The 6.3, in which case, if the Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms Agent then holds any portion of the Escrow Agreement). The Indemnification Shares Amount, then: (A) the Escrow Agent shall be held for a period return the portion of twelve (12) months following the Closing DateEscrow Amount received from each Investor which it then holds, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraudeach such Investor, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b)written wire transfer instructions received from such Investor; and (B) if Escrow Agent has not received written wire transfer instructions from any Investor before the 30th day after such termination date, shall be Buyer's then the Escrow Agent may, in its sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms absolute discretion, either (x) deposit that portion of the Escrow Agreement Amount to be returned to such Investor in a court of competent jurisdiction on written notice to such Investor, and Escrow Agent shall be determined by averaging the closing sales price thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Parent Stock Escrow Amount pending receipt of written wire transfer instructions from such Investor or an order from a court of competent jurisdiction; OR (orii) in the case of the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in case no reported sales take place on such daywhich case, the average Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (A) to the Placement Agent, the fees payable to such Placement Agent, and (B) the balance of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior aggregate purchase price to the Closing DateCompany.

Appears in 1 contract

Samples: Securities Purchase Agreement (Mad Catz Interactive Inc)

Escrow. Supplier shall, promptly after the Effective Date, deposit into escrow (athe “Escrow”) On the date hereofSource Code for any Software embedded in, Buyeror used in connection with the development of, the Products (including the back-end), in each Seller case owned by Supplier or its Subsidiaries, along with any related documentation and an escrow agent selected by Buyer materials (including Technical Manufacturing Information and Sellers Product Information) and any Software comprised in the Xxxx IP ("NET ESCROW AGENT"collectively, the “Escrow Materials”). Supplier will, from time to time, provide Customer with a list of all third-party Software embedded in the Escrow Materials and required to use the Escrow Materials. Supplier agrees, during the term of this Agreement, to deposit into such Escrows (on a quarterly basis and for every major new release or similar item, in each case within ten (10) shall execute and deliver an days thereof) any updates to the Escrow Materials. The agreed escrow agreement ("NET ESCROW AGREEMENT") for any Escrow Materials in the form Xxxx Catalog Products is set forth on Schedule 9.13 hereof. The Parties agree that the Escrow agreement for any Escrow Materials in the Verisure Developed Products will be entered into upon the completion of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver first SOW entered into by the Parties and will have terms substantially similar to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2on Schedule 9.13. The Escrow Shares agreements will be deemed “supplementary to” this Agreement for purposes of bankruptcy law. The conditions for release of Escrow shall be held in escrow until December 31, 1998 (subject limited to the terms occurrence of a Late Stability Triggering Event or, in respect of Verisure Developed Products, the occurrence of a Supply [***] = Certain Confidential Information Omitted 48 Triggering Event or the termination of this Agreement (other than a termination under Section 11.03(d); and provided, further, that Customer’s access to any Xxxx IP in the Xxxx Xxxxx Services applies only in respect of a Late Stability Triggering Event). Customer will pay for the reasonable and documented fees of the Escrow Agreementagent (reasonably acceptable to Customer) and for the expense of one employee solely dedicated to fulfilling Customer’s obligations under this Section 9.13 (provided, Supplier shall have received Customer’s prior written consent for any such fees and or expenses) (collectively, the “Escrow Costs”). The Indemnification Shares During the period in which Supplier is in material breach of its obligations under this Section 9.13 or the separate escrow agreement, Supplier shall be held liable for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing DateCosts.

Appears in 1 contract

Samples: Supply Agreement (Arlo Technologies, Inc.)

Escrow. (ai) On Unless otherwise agreed to by the Company and a Purchaser, simultaneously with the execution and delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Subscription Amount to be paid to a non-interest bearing escrow account of Xxxxxxxxxx Xxxxxxx PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). (ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement and the Escrow Agreement, from the date hereof, Buyer, each Seller and an escrow agent selected by Buyer and Sellers of its receipt of the funds constituting the Escrow Amount until the soonest of: ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT"A) in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shall, on the date hereof, deliver to the NET Escrow Agent the Purchased Shares. The Purchased Shares shall be held in escrow until the Closing Date at which time they will be delivered to Buyer, pursuant to the terms case of the NET Escrow Agreement. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form termination of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined this Agreement in accordance with Section 1.2. The 6.18, in which case, if the Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR (B) in the case of the Closing, receipt of written instructions from the Company and Canaccord that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to Canaccord, the fees and reimbursable expenses payable to the Placement Agents (which fees and expenses shall be set forth in such instructions), and (2) the balance of the aggregate purchase price to the Company. (iii) The Escrow Agent has acted as legal counsel to the Placement Agents in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agents including, without limitation, with regard to any dispute arising out of this Agreement), the other Transaction Documents, the Escrow Amount or any other matter. The Indemnification Shares shall be held for a period of twelve (12) months following Purchasers hereby expressly consent to permit the Closing Date, unless disbursed earlier Escrow Agent to Buyer for Claims pursuant represent the Placement Agents in connection with all matters relating to this Agreement. Other than for Claims , including, without limitation, with regard to any dispute arising out of fraudthis Agreement, the Indemnification Shares or, in the event such shares are soldother Transaction Documents, the value thereof as determined in accordance Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and 2.1(d) to the extent provided in Article VI hereof. they deemed necessary, and has entered into this Agreement after being satisfied with such advice. (iv) The value provisions of this Section 2.1(d) shall survive any Indemnification Shares paid to Buyer pursuant to the terms termination of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Datethis Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Titan Pharmaceuticals Inc)

Escrow. The purchase price for the sale of the notes will be placed in escrow pending completion of the acquisition of oil and gas properties from Plains Exploration & Production Company (athe “Acquisition”) On and MMR’s raising additional capital in an amount of $500 million from Freeport-McMoRan Copper & Gold Inc. (the “Additional Financing”). Any amounts held in escrow may be invested in certain specific investments as directed by MMR. The release of the purchase price for the sale of the notes from the escrow account to MMR as payment for the notes, and issuance thereof, is conditioned upon the concurrent completion of the Acquisition and the Additional Financing. If (i) the Acquisition and Additional Financing are not consummated on or prior to March 31, 2011, or (ii) MMR provides notice that the Acquisition or Additional Financing will not be consummated, then, in any such case, the escrow agent will promptly return holders’ funds to them, with a commitment fee in an amount equal to 4% per annum in respect of the time period during which holders’ funds were held in escrow, which will be funded by a combination of MMR’s separate payment and interest earned on the funds while held and invested in escrow, and MMR will not issue the notes. If the conditions to closing specified above are satisfied, then (x) the escrow agent will release holders’ funds to MMR concurrently upon MMR’s issuance of the notes to the holders that placed funds in escrow, (y) MMR will pay to the holders a commitment fee in an amount equal to 2% per annum in respect of the time period during which holders’ funds were held in escrow, which will be funded by a combination of MMR’s separate payment and interest earned on the funds while held and invested in escrow, and (z) interest on the notes will accrue at the rate specified opposite “Interest” above from the date hereofon which the notes were originally issued. Registration Rights: MMR will enter into a registration rights agreement for the benefit of the holders of the notes, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("NET ESCROW AGENT") shall execute and deliver an escrow agreement ("NET ESCROW AGREEMENT") in the form of EXHIBIT 1.3A hereto pursuant to which Sellers shallit will agree to file a shelf registration statement under the Securities Act of 1933, on as amended (the “Securities Act”), relating to the resale of the notes and the shares of common stock issuable upon conversion thereof. MMR will use its commercially reasonable efforts (i) to cause such shelf registration statement to become effective no later than 30 days after the date hereofof original issuance of the notes, deliver and (ii) to keep it effective until such date that all of the NET Escrow Agent notes and the Purchased Shares. The Purchased Shares shall MMR common stock issuable upon conversion thereof cease to be held outstanding or have either been (x) sold or otherwise transferred pursuant to an effective registration statement or (y) sold pursuant to Rule 144 under circumstances in escrow until which any legend borne by the Closing Date at which time they will notes or common stock relating to restrictions on transferability thereof is removed or such notes or common stock are eligible to be delivered to Buyer, sold by the holders thereof (other than MMR’s affiliates) without restriction pursuant to the terms volume limitations of Rule 144 under the NET Escrow AgreementSecurities Act or any successor rules thereto or otherwise. (b) On the Closing Date, Buyer, each Seller and an escrow agent selected by Buyer and Sellers ("ESCROW AGENT") shall execute and deliver an escrow agreement ("ESCROW AGREEMENT") substantially in the form of EXHIBIT 1.3B hereto pursuant to which Buyer shall deliver to Escrow Agent the number of Transaction Shares determined in accordance with Section 1.2. The Escrow Shares shall be held in escrow until December 31, 1998 (subject to the terms of the Escrow Agreement). The Indemnification Shares shall be held for a period of twelve (12) months following the Closing Date, unless disbursed earlier to Buyer for Claims pursuant to this Agreement. Other than for Claims of fraud, the Indemnification Shares or, in the event such shares are sold, the value thereof as determined in accordance with this Section 1.3(b), shall be Buyer's sole remedy for the payment of any Losses for which Buyer may be entitled to indemnification as and to the extent provided in Article VI hereof. The value of any Indemnification Shares paid to Buyer pursuant to the terms of the Escrow Agreement shall be determined by averaging the closing sales price of the Parent Stock (or, in case no reported sales take place on such day, the average of the closing bid and ask prices on such day) on the Nasdaq SmallCap Market for the five (5) consecutive trading days prior to the Closing Date.

Appears in 1 contract

Samples: Securities Purchase Agreement (McMoran Exploration Co /De/)