Indemnification Escrow Agreement. Pursuant to Article XII hereof, the stockholders of the Company shall indemnify and hold the Acquiror and the Surviving Corporation harmless from and against certain Indemnified Losses (as hereinafter defined). On or prior to Closing, Acquiror, an escrow agent (the "Escrow Agent") mutually agreed upon by Acquiror and the Company, and the Company, on behalf of its stockholders, shall enter into an Indemnification Escrow Agreement in substantially the form of Exhibit 3.5 attached hereto (as the same may be modified pursuant to mutual agreement of the parties hereto prior to the Closing, the "Indemnification Escrow Agreement"). Notwithstanding any other provision in this Agreement to the contrary (a) in order to secure the general indemnification obligations to the Acquiror Indemnified Parties (as hereinafter defined) under this Agreement, other than with respect to any Special Indemnified Losses (as hereinafter defined), a certificate evidencing ten percent (10%) of the shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company at Closing pursuant to Section 3.3 hereof (collectively, the "General Escrowed Shares") shall be registered in the name of the Escrow Agent, as nominee for the stockholders of the Company, and ten percent (10%) of the aggregate amount of cash which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "General Escrowed Cash") shall instead be deposited into and held in escrow (the "General Escrow Fund") pursuant to the terms of the Indemnification Escrow Agreement and (b) in order to secure the indemnification obligations to the Acquiror Indemnified Parties under this Agreement solely with respect to any Special Indemnified Losses, a certificate evidencing 307,617 shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (collectively, the "Special Escrowed Shares") shall be registered in the name of the Escrow Agent, as nominee for the stockholders of the Company, and an aggregate amount of cash equal to $700,800 which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "Special Escrowed Cash"), shall instead be deposited into and held in escrow (the "Special Escrow Fund"), separate from the General Escrow Fund, pursuant to the terms of the Indemnification Escrow Agreement. Acquiror is hereby directed by the Company, on behalf of each of the Company's stockholders, to deposit the number of General Escrowed Shares and Special Escrowed Shares (collectively, the "Escrowed Shares") and amount of General Escrowed Cash and Special Escrowed Cash (collectively, the "Escrowed Cash") set forth opposite such stockholder's name in Annex A to the Indemnification Escrow Agreement with the Escrow Agent at the Closing, and Acquiror shall make such deposit as so directed and as contemplated in the preceding sentence."
Appears in 2 contracts
Samples: Agreement and Plan of Merger (North American Scientific Inc), Agreement and Plan of Merger (Friede John A)
Indemnification Escrow Agreement. Pursuant to Article XII hereof, Agreement or the stockholders of the Company shall indemnify and hold the Acquiror Merger Agreements. Microfield and the Surviving Corporation harmless from and against certain Indemnified Losses (as hereinafter defined). On or prior to Closing, Acquiror, an escrow agent (Shareholders will arrange for the "Escrow Agent") mutually agreed upon by Acquiror payment of ordinary dividends and the Companydelivery of proxies and other notices among themselves, and the CompanyEscrow Agent need not be involved. Neither the Escrow Agent nor its nominee shall be under any duty to take any action to preserve, on behalf protect, exercise or enforce any rights or remedies under or with respect to the Escrow Shares (including without limitation with respect to the exercise of its stockholdersany voting or consent rights, shall enter into an Indemnification conversion or exchange rights, defense of title, preservation or rights against prior matters or otherwise). Notwithstanding the foregoing, if the Escrow Agreement Agent is so requested in substantially a written request of a Representative received by the form of Exhibit 3.5 attached hereto Escrow Agent at least three (as the same may be modified pursuant to mutual agreement of the parties hereto 3) Business Days prior to the Closingdate on which the Escrow Agent is requested therein to take such action (or such later date as may be acceptable to the Escrow Agent), the "Indemnification Escrow Agreement"). Notwithstanding any other provision in this Agreement Agent shall execute or cause its nominee to execute, and deliver to the contrary (a) Representative a proxy or other instrument in order the form supplied to secure it by the general indemnification obligations to the Acquiror Indemnified Parties (as hereinafter defined) under this Agreement, other than Representative for voting or otherwise exercising any right of consent with respect to any Special Indemnified Losses (as hereinafter defined), a certificate evidencing ten percent (10%) of the shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company at Closing pursuant to Section 3.3 hereof (collectively, the "General Escrowed Shares") shall be registered in the name of the Escrow AgentShares hold by it hereunder, as nominee for to authorize therein the stockholders Representative to exercise such voting or consent authority in respect of the CompanyEscrow Shares (provided, and ten percent (10%) of that the aggregate amount of cash which would otherwise Escrow Agent shall not be delivered obliged to the stockholders of the Company pursuant to Section 3.3 hereof (the "General Escrowed Cash") shall instead be deposited into and held execute any such proxy or other instrument if, in escrow (the "General Escrow Fund") pursuant to its judgment, the terms of thereof may subject the Indemnification Escrow Agreement Agent to any liabilities or obligations in its individual capacity). The Escrow Agent shall not be under any duty or responsibility to forward to Microfield, Shareholders and the Representatives (b) in order each, an "INTERESTED PARTY"), or to secure the indemnification obligations notify any Interested Party with respect to, or to the Acquiror Indemnified Parties under this Agreement solely take any action with respect to, any notice, solicitation or other document or information, written or otherwise, received from an issuer or other person with respect to any Special Indemnified Lossesthe Escrow Shares, a certificate evidencing 307,617 shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (collectivelyincluding but not limited to, proxy material, tenders, options, the "Special Escrowed Shares") shall be registered in the name pendency of the Escrow Agent, as nominee for the stockholders calls and maturities and expiration of the Company, and an aggregate amount of cash equal to $700,800 which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "Special Escrowed Cash"), shall instead be deposited into and held in escrow (the "Special Escrow Fund"), separate from the General Escrow Fund, pursuant to the terms of the Indemnification Escrow Agreement. Acquiror is hereby directed by the Company, on behalf of each of the Company's stockholders, to deposit the number of General Escrowed Shares and Special Escrowed Shares (collectively, the "Escrowed Shares") and amount of General Escrowed Cash and Special Escrowed Cash (collectively, the "Escrowed Cash") set forth opposite such stockholder's name in Annex A to the Indemnification Escrow Agreement with the Escrow Agent at the Closing, and Acquiror shall make such deposit as so directed and as contemplated in the preceding sentencerights."
Appears in 2 contracts
Samples: Indemnification Escrow Agreement (Microfield Group Inc), Indemnification Agreement (Microfield Group Inc)
Indemnification Escrow Agreement. At the Closing, AGI, the -------------------------------- Seller, NDI, the Purchaser, Acquisition Sub and the Escrow Agent shall execute and deliver the Indemnification Escrow Agreement. Pursuant to Article XII and in accordance with the terms and conditions thereof:
(i) At the Closing, in partial satisfaction of the portion of the Purchase Price described in Section 2.6(a)(i) hereof, the stockholders of Purchaser or Acquisition Sub shall deposit into the Company shall indemnify and hold interest-bearing account established under the Acquiror and the Surviving Corporation harmless from and against certain Indemnified Losses (as hereinafter defined). On or prior to Closing, Acquiror, an escrow agent Indemnification Escrow Agreement (the "Escrow Agent") mutually agreed upon by Acquiror and the Company, and the Company, on behalf of its stockholders, shall enter into an Indemnification Escrow Agreement Account"), by (at the Purchaser's or Acquisition Sub's option) certified or cashier's check or wire transfer of immediately available funds, $550,000 in substantially cash (the form "Holdback"), as a holdback against which the Purchaser or Acquisition Sub shall have the right to satisfy, in whole or in part, any claims by it or any of Exhibit 3.5 attached hereto (as the same may be modified other Indemnified Parties for indemnification pursuant to mutual agreement of Section 11.2 hereof.
(ii) The Holdback, together with all interest earned thereon in the parties hereto prior to the ClosingIndemnification Escrow Account (collectively, the "Indemnification Escrow AgreementAmount"). Notwithstanding any other provision in this Agreement to the contrary , (a) in order to secure the general indemnification obligations to the Acquiror Indemnified Parties (as hereinafter defined) under this Agreement, other than with respect to any Special Indemnified Losses (as hereinafter defined), a certificate evidencing ten percent (10%) of the shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company at Closing pursuant to Section 3.3 hereof (collectively, the "General Escrowed Shares"A) shall be registered in the name of held by the Escrow Agent, as nominee for the stockholders of the Company, and ten percent (10%) of the aggregate amount of cash which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "General Escrowed Cash") shall instead be deposited into and held Agent in escrow (the "General Escrow Fund") pursuant to the terms of the Indemnification Escrow Agreement Account pending determination of the Purchaser's or Acquisition Sub's right to satisfy such indemnification claims, if any, against such Indemnification Escrow Amount and (bB) in order to secure the indemnification obligations following such determination, shall be paid to the Acquiror Indemnified Parties under this Agreement solely with respect to any Special Indemnified Losses, a certificate evidencing 307,617 shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (collectivelySeller, the "Special Escrowed Shares") shall be registered in the name of the Escrow AgentPurchaser or Acquisition Sub, as nominee for the stockholders of the Companyappropriate; provided, and an aggregate amount of cash equal to $700,800 which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "Special Escrowed Cash")however, shall instead be deposited into and held that all -------- ------- amounts remaining in escrow (the "Special Escrow Fund"), separate from the General Escrow Fund, pursuant to the terms of the Indemnification Escrow Agreement. Acquiror is hereby directed by Account and not subject to any outstanding indemnification claim on the Company, on behalf of each second anniversary of the Company's stockholders, to deposit the number of General Escrowed Shares and Special Escrowed Shares (collectively, the "Escrowed Shares") and amount of General Escrowed Cash and Special Escrowed Cash (collectively, the "Escrowed Cash") set forth opposite such stockholder's name in Annex A Closing Date shall be paid to the Indemnification Escrow Agreement with the Escrow Agent at the Closing, and Acquiror shall make such deposit as so directed and as contemplated in the preceding sentenceSeller."
Appears in 1 contract
Indemnification Escrow Agreement. Pursuant to Article XII hereof, the stockholders of the Company shall indemnify and hold the Acquiror and the Surviving Corporation harmless from and against certain Indemnified Losses (as hereinafter defined). On or prior to Closing, Acquiror, an escrow agent (the "Escrow Agent") mutually agreed upon by Acquiror and the Company, and the Company, on behalf of its stockholders, shall enter into an Indemnification Escrow Agreement in substantially the form of Exhibit 3.5 attached hereto (as the same may be modified pursuant to mutual agreement of the parties hereto prior to the Closing, the "Indemnification Escrow Agreement"). Notwithstanding any other provision in this Agreement to the contrary (a) contrary, in order to secure the general indemnification obligations to the Acquiror Indemnified Parties (as hereinafter defined) under this Agreement, other than with respect to any Special Indemnified Losses (as hereinafter defined), a certificate evidencing ten percent (10%) of the shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company at Closing pursuant to Section 3.3 hereof (collectively, the "General Escrowed Shares") shall be registered in the name of the Escrow Agent, as nominee for the stockholders of the Company, and ten percent (10%) of the aggregate amount of cash which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "General Escrowed Cash") shall instead be deposited into and held in escrow (the "General Escrow Fund") pursuant to the terms of the Indemnification Escrow Agreement and (b) in order to secure the indemnification obligations to the Acquiror Indemnified Parties under this Agreement solely with respect to any Special Indemnified Losses, a certificate evidencing 307,617 shares of Acquiror Common Stock which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (collectively, the "Special Escrowed Shares") shall be registered in the name of the Escrow Agent, as nominee for the stockholders of the Company, and an aggregate amount of cash equal to $700,800 which would otherwise be delivered to the stockholders of the Company pursuant to Section 3.3 hereof (the "Special Escrowed Cash"), shall instead be deposited into and held in escrow (the "Special Escrow Fund"), separate from the General Escrow Fund, pursuant to the terms of the Indemnification Escrow Agreement. Acquiror is hereby directed by the Company, on behalf of each of the Company's stockholders, to deposit the number of General Escrowed Shares and Special Escrowed Shares (collectively, the "Escrowed Shares") and amount of General Escrowed Cash and Special Escrowed Cash (collectively, the "Escrowed Cash") set forth opposite such stockholder's name in Annex A to the Indemnification Escrow Agreement with the Escrow Agent at the Closing, and Acquiror shall make such deposit as so directed and as contemplated in the preceding sentence."
Appears in 1 contract
Samples: Merger Agreement (Friede John A)