Escrowed Shares a. With respect to the Escrowed Shares, upon an event of default as set forth in the Pledge Agreement, the Escrow Agent shall send written notice to the Transfer Agent ("Escrow Notice") to transfer such number of Escrow Shares as set forth in the Escrow Notice to the Buyers. Upon receipt of an Escrow Notice, the Transfer Agent shall promptly transfer such number of Escrow Shares to the Buyers as shall be set forth in the Escrow Notice delivered to the Transfer Agent by the Escrow Agent. Further, the Transfer Agent shall promptly transfer such shares from the Buyers to any subsequent transferee promptly upon receipt of written notice from the Buyers or their counsel. If the Escrow Shares are not registered for sale under the Securities Act of 1933, as amended, then the certificates for the Escrow Shares shall bear the legend set forth in Section 1b.
b. In the event that counsel to the Company fails or refuses to render an opinion as may be required by the Transfer Agent to affect a transfer of the Escrow Shares (either with or without restrictive legends, as applicable), then the Company irrevocably and expressly authorizes counsel to the Buyers to render such opinion. The Transfer Agent shall accept and be entitles to rely on such opinion for the purpose of transferring the Escrow Shares.
Escrowed Shares. (a) As security for Proman’s indemnity obligations under this ARTICLE V, PDN shall withhold the Escrowed Shares from the Merger Share Consideration at the Effective Time. A stock certificate representing the Escrowed Shares shall be delivered to the transfer agent at the Effective Time to be held by such transfer agent during the period beginning on the Effective Time and ending on the first anniversary of the Effective Time and distributed in accordance with Section 5.5(b). Proman shall retain the beneficial ownership and voting rights associated with the Escrowed Shares until such time as such shares are distributed to PDN pursuant to Section 5.5(b).
(b) PDN shall have the right to deduct from the Escrowed Shares any Losses suffered by PDN Indemnified Persons that have been finally resolved in accordance with this Agreement whereby the number of Escrowed Shares deducted by PDN equals the quotient of the amount of the Losses suffered by PDN as finally resolved divided by the Current Market Value (as hereinafter defined) of PDN Common Stock as of the date such shares are transferred to PDN. On the first anniversary of the Effective Time, PDN shall distribute to Proman the balance of any of the Escrowed Shares remaining after the deduction for Losses suffered by a PDN Indemnified Person in accordance with the immediately preceding sentence. Notwithstanding the foregoing, any Losses incurred, paid or borne by a PDN Indemnified Person for which such PDN Indemnified Person is entitled to indemnification from Proman under this Article V may, at the election of Proman, be satisfied, in whole or in part, by Proman in the form of cash, rather than shares of PDN Common Stock, in which event Escrowed Shares having a Current Market Value equal to the amount of such payment shall be promptly released to Proman.
Escrowed Shares. (i) During the term of this Agreement, each Voyager Stockholder shall have the right to exercise any voting rights with respect to the Escrowed Shares attributable to such Voyager Stockholder pursuant to its Escrowed Share Proportion (as defined below) in any matter for which the Escrowed Shares are permitted to vote. The Voyager Stockholders’ Representative shall direct the Escrow Agent in writing as to the exercise of any such voting rights by Voyager Stockholders, and the Escrow Agent shall vote, or cause to be voted, such Escrowed Shares pursuant to any such directions of the Voyager Stockholders’ Representative. Notwithstanding the foregoing, with respect to Escrowed Shares that are subject to options to purchase shares of Spinco Common Stock (“Spinco Options”), which were converted from options to purchase shares of Voyager Capital Stock (“Voyager Options”) at the Effective Time, the Escrow Agent shall not vote any such shares in any matter for which the Escrowed Shares are permitted to vote.
(ii) Any dividends paid with respect to the Escrowed Shares shall be deemed distributed currently to the Voyager Stockholders and deemed recontributed to the Escrow Account and delivered to the Escrow Agent by the Voyager Stockholders, to be held in a bank account and be deposited in one or more interest-bearing accounts to be maintained by the Escrow Agent in the name of the Escrow Agent for the benefit of the Voyager Stockholders, subject to any distributions pursuant to Section 3(e). The parties hereto agree to report any dividends consistently with such treatment for all U.S. federal (and, if applicable, state and local) income tax and information reporting purposes.
(iii) In the event of any stock split, reverse stock split, stock dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off or other similar change in capitalization or event, or any distribution to holders of Spinco Common Stock other than a regular cash dividend, the Escrowed Shares under Section 2(a) above shall be appropriately adjusted on a pro rata basis without any additional action by the parties hereto.
Escrowed Shares. At the Effective Time, the Company shall deliver to the escrow agent (the "Escrow Agent") designated under the Escrow Agreement (the "Escrow Agreement"), substantially in the form of Exhibit C, a certificate or certificates representing an aggregate 400,000 shares of Parent Common Stock out of the Gross Stock Consideration (such amount hereinafter referred to as the "Escrow Amount," and such shares are collectively hereinafter referred to as the "Escrowed Shares") for the purposes of satisfying indemnity obligations arising out of a breach by the Company of any of its representations, warranties or covenants contained herein, all as more particularly described in the Escrow Agreement. The Escrowed Shares shall be deducted from the number of shares of Parent Common Stock to be issued to the Shareholders in the Merger based on the percentages for such calculation set forth in the Company Certificate (it being understood that no shares of Parent Common Stock shall be deducted from the number of shares of Parent Common Stock issued to (x) Shareholders in exchange for shares of Company Common Stock issued to Shareholders as a result of the exercise of a Company Warrant after the date of the Original Agreement and (y) Shareholders in exchange for shares of Company Common Stock issued to Shareholders after the date of the Original Agreement in accordance with Section 7.01(m)). In the event that the Merger is approved by the Shareholders as provided herein, the Shareholders shall, without any further act of any Shareholder, be deemed to have (i) consented to and approved the appointment of Xxxx Xxxxxxxx as the representative of the Shareholders under the Escrow Agreement (the "Representative") and as the attorney in fact and agent for and on behalf of each Shareholder with respect to the subject matter under the Escrow Agreement. Without limiting the generality of the foregoing, the Representative shall have full power and authority on behalf of the Shareholders to (a) interpret all of the terms and provisions of the Escrow Agreement; (b) compromise or settle any claims asserted under the Escrow Agreement; (c) authorize payments from the Escrow Fund (as defined in the Escrow Agreement), on behalf of the Shareholders and (d) execute, deliver and perform the Escrow Agreement. The Representative may be changed by the Shareholders from time to time upon not less than ten (10) days' prior written notice to the Escrow Agent and Parent; PROVIDED that a Representative may...
Escrowed Shares. Each of the Selling Shareholders shall escrow twenty percent (20%) of the Common Stock to be issued to such Selling Shareholder to be available for distribution to Purchaser in the event of an Indemnified Claim not paid in cash by the Indemnifying Party. Such escrow shall expire on the date not less than two (2) years and sixty (60) days after the Date of Closing, when there shall be no pending Indemnification Claim for which notice has been given under Section 5.4, and upon such expiration any original share certificates shall be delivered to the owners
Escrowed Shares. 30 ARTICLE VI
Escrowed Shares. In accordance with the Escrow Agreement, the Escrowed Shares shall be released to Seller and the Individual Sellers, on the one hand, and/or Buyer, on the other hand, as follows:
(i) On the first anniversary of the date of this Agreement, one–half of the original number of Escrowed Shares (the “First Escrow Tranche”) shall be distributed to Seller or retained by the Escrow Agent as follows:
(a) all of the First Escrow Tranche shares will be distributed to Seller and the Individual Sellers, if the Business realizes at least $11,500,000 in Revenue (as defined below) during the 2008 calendar year; or
(b) to the extent that the Business realizes less than $11,500,000 in Revenue during the 2008 calendar year, a number of Escrowed Shares from the First Escrow Tranche shall be retained by the Escrow Agent based on the following formula: X = (A – B) x 0.50 ÷ C where: X = the number of shares to be withheld by the Escrow Agent A = $11,500,000 B = Revenue for the 2008 calendar year C = the Average Price After such retention, the remainder of the First Escrow Tranche shall be distributed to Seller and the Individual Sellers on such first anniversary.
(ii) On the second anniversary of the date of this Agreement, all remaining Escrowed Shares (including any retained shares from the First Escrow Tranche) shall be distributed to Seller and the Individual Sellers, on the one hand, or Buyer, on the other hand, as follows:
(a) all remaining Escrowed Shares will be distributed to Buyer, if the Business realizes at least $24,500,000 in Revenue during the 2008 and 2009 calendar years; or
(b) the greater result to Seller and the Individual Sellers of the following two formulas:
(x) One–half of the original number of Escrowed Shares will be distributed to Seller and the Individual Sellers, if the Business realizes at least $13,000,000 in Revenue during the 2009 calendar year; or
(y) To the extent that the Business realizes 2008 and 2009 Revenue of less than $24,500,000, a number of Escrowed Shares from the remaining Escrowed Shares shall be distributed to Buyer based on the following formula: X = (A – B) x 0.50 ÷ C where: X = the number of shares to be distributed to Buyer A = $24,500,000 B = aggregate Revenue for the 2008 and 2009 calendar years C = the Average Price After such distribution to Buyer, all remaining Escrowed Shares shall be distributed to Seller and the Individual Sellers on such second anniversary.
(iii) For purposes of this Section 2.02, “Revenue” shall mean al...
Escrowed Shares. At all times while Escrowed Shares are held by the Escrow Agent pursuant to the Escrow Agreement, the Target Stockholders shall have the right to (i) exercise any voting rights with respect to the Escrowed Shares, and (ii) receive all products and proceeds of any of the Escrowed Shares, including all dividends, whether in the form of cash, stock or any other form, and any other rights and other property which the Target Stockholders are, from time to time, entitled to receive in respect of or in exchange for any or all of the Escrowed Shares. In addition, in the event of the issuance of shares of capital stock or other property as a result of a stock split, merger, consolidation, combination of shares or similar recapitalization, a reorganization or a mandatory conversion with respect to or affecting the Escrowed Shares that becomes effective during the term of this Escrow Agreement, the additional shares of capital stock or other property so issued, paid, exchanged or substituted (if any) with respect to the Escrowed Shares shall be added to or substituted or exchanged for the Escrowed Shares as Escrowed Shares hereunder.
Escrowed Shares. Except as expressly provided in this Escrow Agreement, the Escrowed Shares may not be transferred, sold or otherwise disposed of by the Escrow Agent. Each of the Shareholders shall be permitted to exercise any voting rights with respect to the Escrowed Shares issued in his name.
Escrowed Shares. Immediately following the Closing, Parent shall deliver to the Escrow Agent a certificate or certificates for shares of Bridge Preferred with an aggregate Liquidation Preference (as defined in the Merger Agreement) of $20,000,000 (determined as set forth in Section 2.01(e) of the Merger Agreement) (the "STOCK ESCROW FUND"), to be registered in the name of Embassy & Co. as nominee of the Escrow Agent and held in escrow by the Escrow Agent as provided in this Agreement. The Cash Escrow Fund and the Stock Escrow Fund shall be known collectively as the "ESCROW FUNDS." The shares of Bridge Preferred being held in the Stock Escrow Fund shall be referred to as the "ESCROW SHARES". The Escrow Funds shall be held as trust funds and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any Target Stockholder or of any party hereto. The Escrow Agent agrees to accept delivery of the Escrow Funds and to hold each of the Cash Escrow Fund and the Stock Escrow Fund in a separate escrow account (collectively, the "ESCROW ACCOUNTS") subject to the terms and conditions of this Agreement.
