Common use of Liability of the Escrow Agent; Withdrawal Clause in Contracts

Liability of the Escrow Agent; Withdrawal. The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its reasonable judgment, and may rely conclusively and shall be EXECUTION Exhibit B-1 RESTRUCTURING AND SETTLEMENT AGREEMENT [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. protected in acting upon any court order, reasonable advice of counsel chosen by the Escrow Agent, or document executed by BHC and/or Cerus authorizing action (or inaction) in accordance with these instructions by the Escrow Agent (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is reasonably believed by the Escrow Agent to be genuine and to be signed or presented by the proper person(s). The Escrow Agent shall not be held liable for any error in judgment made in good faith by an officer of the Escrow Agent unless it shall be proved that the Escrow Agent was negligent in ascertaining the pertinent facts or acted intentionally in bad faith. The Escrow Agent shall not be bound by any notice of demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent thereto. The Escrow Agent may execute ministerial and record keeping responsibilities hereunder through its authorized agents. BHC and Cerus agree to indemnify the Escrow Agent for, and to hold it harmless from and against, any loss, liability, claims, actions, damages or expenses (including reasonable expenses and disbursements of its counsel) incurred without gross negligence, bad faith or intentional misconduct on the part of the Escrow Agent arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including the reasonable costs and expenses of defending itself against any such claim or liability. In the event that the Escrow Agent shall become involved in any arbitration or litigation relating to the Escrow Fund, the Escrow Agent is authorized to comply with any decision reached through such arbitration or litigation. Escrow Agent (and any successor Escrow Agent) may at any time resign as such by giving 30 days’ prior written notice to BHC and Cerus and delivering the Escrow Fund to any successor Escrow Agent designated by BHC and Cerus in writing, or by any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. Prior to the effectiveness of such resignation, BHC and Cerus shall appoint a new Escrow Agent, which shall be a bank or national banking association. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) and (b) the day, which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.

Liability of the Escrow Agent; Withdrawal. The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its reasonable judgmentjudgment (other than acts of gross negligence or willful misconduct), and may rely conclusively and shall be EXECUTION Exhibit B-1 RESTRUCTURING AND SETTLEMENT AGREEMENT [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. protected in acting upon any court orderorder (including without limitation any court order regarding disbursement of any amount of the Escrow Fund), reasonable advice of counsel (whether such counsel shall be regularly retained or specifically employed) chosen by the Escrow Agent, or document executed by BHC and/or Cerus Purchaser and the Seller authorizing action (or inaction) in accordance with these instructions by the Escrow Agent (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is reasonably believed by the Escrow Agent to be genuine and to be signed or presented by the proper person(s). Concurrent with the execution of this Escrow Agreement, the Parties shall deliver to the Escrow Agent authorized signers’ forms in the form of Schedule II-1 and Schedule II-2 to this Escrow Agreement. The Escrow Agent shall not be held liable for any error in judgment made in good faith by an officer of the Escrow Agent unless it shall be proved that the Escrow Agent was grossly negligent in ascertaining the pertinent facts or acted intentionally in bad faithwith willful misconduct. The Escrow Agent shall not be bound by any notice of demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent thereto. The Escrow Agent may execute customary ministerial and record keeping responsibilities hereunder through its authorized agents. BHC THE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION. Purchaser ,Seller and Cerus agree Controlling Shareholders agree, jointly and severally, to indemnify the Escrow Agent for, and to hold it harmless from and against, any loss, liability, claims, actions, damages or expenses (including reasonable expenses and disbursements of its counsel) incurred without gross negligence, bad faith negligence or intentional willful misconduct on the part of the Escrow Agent arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including the reasonable costs and expenses of defending itself against any such claim or liability. The foregoing indemnities in this paragraph shall survive the resignation or substitution of the Escrow Agent or the termination of this Agreement. In the event that the Escrow Agent shall become involved in any arbitration or litigation relating to the Escrow FundDeposit, the Escrow Agent is authorized to comply with any decision reached through such arbitration or litigation. Escrow Agent (and To the extent reasonably practicable, the parties agree to pursue any successor Escrow Agent) may at any time resign as such by giving 30 days’ prior written notice to BHC and Cerus and delivering the Escrow Fund to any successor Escrow Agent designated by BHC and Cerus in writing, redress or by any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising recourse in connection with this Agreement. Prior any dispute without making the Escrow Agent a party to the effectiveness of such resignation, BHC and Cerus shall appoint a new Escrow Agent, which shall be a bank or national banking association. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) and (b) the day, which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdictionsame.

Liability of the Escrow Agent; Withdrawal. The This Escrow Agreement expressly and exclusively sets forth the duties of Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties or obligations shall be read into this Escrow Agreement against Escrow Agent. This Escrow Agreement constitutes the entire agreement between the Escrow Agent and the other parties hereto in connection with the subject matter of this escrow, and no other agreement entered into between the parties, or any of them, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be referred to herein or deposited with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow Agent's rights and responsibilities shall be governed solely by this Escrow Agreement. Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Escrow Agreement or any part thereof, or for the form of execution thereof, or for the identity or authority of any person executing or depositing such subject matter. Escrow Agent shall be under no duty to investigate or inquire as to the validity or accuracy of any document, agreement, instruction or request furnished to it hereunder believed by it to be genuine and Escrow Agent may rely and act upon, and shall not be liable for acting or not acting upon, any action taken such document, agreement, instruction or omitted by it, or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its reasonable judgment, and may rely conclusively and shall be EXECUTION Exhibit B-1 RESTRUCTURING AND SETTLEMENT AGREEMENT [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDEDrequest. protected in acting upon any court order, reasonable advice of counsel chosen by the Escrow Agent, or document executed by BHC and/or Cerus authorizing action (or inaction) in accordance with these instructions by the Escrow Agent (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is reasonably believed by the Escrow Agent to be genuine and to be signed or presented by the proper person(s). The Escrow Agent shall not in no way be held liable responsible for notifying, nor shall it be its duty to notify, any error party hereto or any other party interested in judgment made in good faith by an officer this Escrow Agreement of any payment required or maturity occurring under this Escrow Agreement or under the terms of any instrument deposited herewith. The parties(except Escrow Agent unless it shall be proved Agent) acknowledge that the Escrow Agent was negligent in ascertaining the pertinent facts shall be entitled to distribution plan payments, shareholder service fees, administrative service fees or acted intentionally in bad faithsimilar fees paid by such money market mutual companies, distributors or agents. The Escrow Agent shall not be bound by any notice of demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a writing delivered parties hereby consent to the Escrow Agent signed by Agent’s receipt of such fees and that the proper party or parties andinterest paid on the funds in the escrow shall be net of such fees. Purchaser and the Seller, if the duties or rights of the Escrow Agent are affectedjointly and severally, unless it shall give its prior written consent thereto. The Escrow Agent may execute ministerial and record keeping responsibilities hereunder through its authorized agents. BHC and Cerus agree to indemnify the Escrow Agent for, and to hold it harmless from and against, any losslosses, liabilityliabilities, claims, actions, damages or expenses (including reasonable expenses and disbursements of its counsel) incurred without gross negligence, bad faith or intentional misconduct on the part of the Escrow Agent arising out of or in connection with its entering into this Agreement and carrying attempting to carry out its duties hereunder, including the reasonable costs and expenses of defending itself against any such claim or liability. In As between Purchaser and the event that Seller, any such indemnification of the Escrow Agent shall become involved be payable one- half by Purchaser and one -half by the Seller. The foregoing indemnities in any arbitration this paragraph shall survive the resignation or litigation relating to the Escrow Fund, substitution of the Escrow Agent is authorized to comply with any decision reached through such arbitration or litigationthe termination of this Agreement. The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by giving 30 thirty (30) days’ prior written notice to BHC Purchaser and Cerus the Seller and delivering the Escrow Fund to any successor Escrow Agent jointly designated by BHC Purchaser and Cerus the Seller in writing, or by any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. Prior to the effectiveness of such resignation, BHC Purchaser and Cerus the Seller shall appoint a new Escrow Agent, which shall be a bank or national banking association. The resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) and (b) the day, day which is 30 thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time the Escrow Agent has not received a designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction. The Escrow Agent shall be paid any outstanding fees and expenses prior to transferring the Escrow Fund to a successor Escrow Agent.

Liability of the Escrow Agent; Withdrawal. The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its reasonable judgmentjudgment (other than acts of gross negligence, and bad faith or willful misconduct) and, in connection therewith, may rely conclusively and shall be EXECUTION Exhibit B-1 RESTRUCTURING AND SETTLEMENT AGREEMENT [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. protected in acting upon any court orderorder (including without limitation any court order regarding disbursement of amounts from the Escrow), reasonable advice of counsel (whether such counsel shall be regularly retained or specifically employed) chosen by the Escrow Agent, or document executed by BHC and/or Cerus the Acquiror and Stockholder Representative authorizing action (or inaction) in accordance with these instructions by the Escrow Agent (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is reasonably believed by the Escrow Agent to be genuine and to be signed or presented by the proper person(s). The Escrow Agent shall not be held liable for any error in judgment made in good faith by an officer of the Escrow Agent unless it shall be proved that the Escrow Agent was grossly negligent in ascertaining the pertinent facts or acted intentionally in bad faith. The Escrow Agent shall not be bound by any notice of demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent thereto. The Escrow Agent may execute ministerial and record keeping responsibilities hereunder through its authorized agents. BHC The Acquiror and Cerus agree the Stockholder Representative agree, jointly and severally, to indemnify the Escrow Agent for, and to hold it harmless from and against, any loss, liability, claims, actions, damages or expenses (including reasonable expenses and disbursements of its counsel) incurred without gross negligence, bad faith or intentional willful misconduct on the part of the Escrow Agent arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including the reasonable costs and expenses of defending itself against any such claim or liability. As between the Acquiror and the Stockholder Representative, one-half of any payment made pursuant to this paragraph will be paid by the Acquiror and one-half will be paid by the Stockholder Representative. The foregoing indemnities in this paragraph shall survive the resignation or substitution of the Escrow Agent or the termination of this Agreement. In the event that the Escrow Agent shall become involved in any arbitration or litigation relating to the Escrow FundEscrow, the Escrow Agent is authorized to comply with any decision reached through such arbitration or litigation. The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by giving 30 days’ prior written notice (specifying the effective date of such resignation) to BHC the Acquiror and Cerus the Stockholder Representative and delivering the Escrow Fund Amount to any successor Escrow Agent jointly designated by BHC the Acquiror and Cerus the Stockholder Representative in writing, or by any court of competent jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this AgreementAgreement except for liability arising in connection with its gross negligence, bad faith or willful misconduct. Prior to the effectiveness of such resignation, BHC the Acquiror and Cerus the Stockholder Representative shall appoint a new Escrow Agent, which shall be a bank or national banking association. The In the event the Acquiror and the Stockholder Representative do not agree upon a successor Escrow Agent within 30 days after the receipt of such notice, the Escrow Agent so resigning may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent or other appropriate relief and any such resulting appointment will be binding upon all parties hereto. Subject to the first and last sentences of this paragraph, the resignation of the Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including by a court of competent jurisdiction) and (b) the day, which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto). If at that time The Escrow Agent has not received a designation of shall be paid any outstanding fees and expenses prior to transferring the Escrow Amount to a successor Escrow Agent. By mutual agreement, the Acquiror and the Stockholder Representative will have the right at any time upon not less than 10 days’ written notice to the Escrow Agent to terminate their appointment of the Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the , or successor Escrow Fund until receipt of a designation of Agent, as Escrow Agent. The Escrow Agent or successor Escrow Agent or will continue to act as Escrow Agent until a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdictionsuccessor is appointed and qualified to act as Escrow Agent.

Liability of the Escrow Agent; Withdrawal. The Escrow Agent shall not be liable for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith, and in the exercise of its reasonable judgment, and may rely conclusively and shall be EXECUTION Exhibit B-1 RESTRUCTURING AND SETTLEMENT AGREEMENT [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. protected in acting upon any court order, reasonable advice of counsel chosen by the Escrow Agent, or document executed by BHC and/or Cerus authorizing action (or inaction) in accordance with these instructions by the Escrow Agent (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is reasonably believed by the Escrow Agent to be genuine and to be signed or presented by the proper person(s). The Escrow Agent shall not be held liable for any error in judgment made in good faith by an officer of the Escrow Agent unless it shall be proved that the Escrow Agent was negligent in ascertaining the pertinent facts or acted intentionally in bad faith. The Escrow Agent shall not be bound by any notice of demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent thereto. The Escrow Agent may execute ministerial and record keeping responsibilities hereunder through its authorized agents. BHC and Cerus agree to indemnify the Escrow Agent for, and to hold it harmless from and against, any loss, liability, claims, actions, damages or expenses (including reasonable expenses and disbursements of its counsel) incurred without gross negligence, bad faith or intentional misconduct on the part of the Escrow Agent arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including the reasonable costs and expenses of defending itself against any such claim or liability. In the event that the Escrow Agent shall become involved in any arbitration or litigation relating to the Escrow Fund, the Escrow Agent is authorized to comply with any decision reached through such arbitration or litigation. Escrow Agent (and any successor Escrow Agent) may at any time resign as such by giving 30 days’ prior written notice to BHC and Cerus and delivering the Escrow Fund to any successor Escrow Agent designated by BHC and Cerus in writing, or by any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. Prior to the effectiveness of such resignation, BHC and Cerus shall appoint a new Escrow Agent, which shall be a bank or national banking association. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) and (b) the day, which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.