Provisions Concerning the Escrow Agent. 4.1 Escrow Agent may resign and be discharged from their duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal shall take effect. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until the successor accepts the escrow and receives the funds. 4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so. 4.3 The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice of counsel (which counsel may be of Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligence. 4.4 The Parties agree to indemnify the Escrow Agent and hold them harmless against any and all liabilities incurred by them hereunder, except in the case where such liabilities result from their own willful misconduct or gross negligence.
Appears in 2 contracts
Samples: Customer Assignment Agreement (Certified Services Inc), Customer Purchase Agreement (Certified Services Inc)
Provisions Concerning the Escrow Agent. 4.1 Escrow Agent may resign and be discharged from their duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove To induce the Escrow Agent as escrow agent to act hereunder, it is further agreed by giving notice UTC and UTSC Sub that:
5.1 The Escrow Agent shall not be under any duty to give the Escrow Securities any greater degree of care than it gives its own similar property.
5.2 The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such removal to gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, UTC shall indemnify and hold harmless the Escrow Agent from and specifying a date when such removal shall take effect. Upon such noticeagainst any and all losses, the Parties shall appoint a successor escrow agentliabilities, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified claims, actions, damages, costs and expenses arising out of and in the appropriate notice. connection with this Escrow Agreement.
5.3 The Escrow Agent shall continue be entitled to serve until the successor accepts the escrow and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively relyrely upon any order, and shall be protected in acting or refraining from actingjudgment, on any written certification, demand, notice, instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by them it in good faith to be genuine and may assume, if in good faith, that any person purporting to have give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been signed or presented by the proper party or parties duly authorized to do so.
4.3 5.4 The Escrow Agent shall not be liable for any action taken or omitted to be taken by it perform only the duties expressly set forth herein, and the Escrow Agent may act in good faith and believed by it to be authorized hereby or within in the rights or powers conferred upon it exercise of its own best judgment in carrying out its duties hereunder, nor for .
5.5 The Escrow Agent at any action taken or omitted to be taken by it in good faith, and in accordance with the advice of counsel (which counsel time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by UTC and the Medicomp Companies. The Escrow Agent's own choosing)Agent at any time may resign by giving written notice to such effect to UTC and the Medicomp Companies. Upon any such termination or resignation, and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligence.
4.4 The Parties agree to indemnify the Escrow Agent and hold them harmless against shall deliver any and all liabilities incurred property in escrow at that time to a successor escrow agent designated by them hereunderUTC and the Medicomp Companies in writing, except whereupon such initial Escrow Agent shall be discharged of any and all further obligations arising in the case where such liabilities result from their own willful misconduct or gross negligenceconnection with this Escrow Agreement.
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Provisions Concerning the Escrow Agent. 4.1 (a) The Escrow Agent shall be paid a fee for its services under this Agreement in the amount of $1,000 per year. The Escrow Agent shall also be entitled to reimbursement for expenses it incurs in the performance of its obligations under this Agreement. The Escrow Agent shall be entitled to employ such legal counsel and other experts as it may resign deem necessary to advise it in connection with the performance of its obligations under this Agreement and be discharged from their duties hereunder at any time by giving notice may rely on the advice of such resignation to the Parties specifying a date when such resignation shall take effectlegal counsel, and may pay them reasonable compensation therefor. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice All fees and expenses of such removal to the Escrow Agent and specifying a date when such removal legal counsel and other experts shall take effect. Upon such noticebe shared equally by DGI and WBM.
(b) Notwithstanding any other provision contained in this Agreement, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until may at all times act upon and in accordance with the successor accepts the escrow joint written instructions of DGI and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so.
4.3 WBM. The Escrow Agent shall not be liable for any action taken act done or omitted to be taken done by it in accordance with such instructions or the exercise of its own judgment or pursuant to the advice of legal counsel of its selection.
(c) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Agreement and joint written instructions given to the Escrow Agent pursuant to this Agreement. The Escrow Agent shall not be subject to, nor obligated to recognize, any other agreement between DGI and WBM even though reference thereto may be made in this Agreement or a copy thereof furnished to the Escrow Agent. The Escrow Agent shall have no responsibility or liability to DGI or WBM with respect to the performance of any such other agreement; provided, however, with the written consent of the Escrow Agent, DGI and WBM, this Agreement may be amended at any time or times by an instrument in writing and delivered to the Escrow Agent.
(d) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form, execution, validity or genuineness of documents or securities now or hereafter deposited under this Agreement, or for any lack of endorsement thereon, or for any description therein, nor shall it be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any such document, security or endorsement or this Agreement, and the Escrow Agent shall be fully protected in relying upon any written notice, demand, certificate or document which it in good faith and believed by it believes to be authorized hereby genuine.
(e) The Escrow Agent is authorized, in its sole discretion, to disregard any and all notices or within instructions given by DGI or WBM or by any other person, firm, or corporation, except only as such notices or instructions as are provided for in this Agreement and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the rights payment, assignment, transfer, conveyance or powers conferred upon it hereunderdelivery of any such property shall be stayed or enjoined by any court order, nor for or in case any action taken order, judgment or omitted to decree shall be taken made or entered by it in good faithany court affecting such property or any part thereof, then and in accordance any of such events the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which the advice Escrow Agent is advised by legal counsel of counsel (which counsel may be of its own choosing is binding upon it; and if the Escrow Agent's own choosing)Agent complies with any such order, and writ, judgment or decree, it shall not be liable for to any mistake of fact the parties hereto or error to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or for any acts decree may be subsequently reversed, modified, annulled, set aside or omissions of any kind unless caused by willful misconduct or gross negligencevacated.
4.4 The Parties agree to indemnify the Escrow Agent and hold them harmless against any and all liabilities incurred by them hereunder, except in the case where such liabilities result from their own willful misconduct or gross negligence.
Appears in 1 contract
Samples: Merger Agreement (Donegal Group Inc)
Provisions Concerning the Escrow Agent. 4.1 10.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
10.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 10.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
10.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
10.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
10.6. The Representatives, on the one hand, and Tsunami, on the other hand, shall each upon demand pay to the Escrow Agent 50% of the amount of all reasonable expenses, including the reasonable fees and expenses of counsel, which the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Funds. In the event Escrow Agent deducts any unpaid fees for which Tsunami is responsible hereunder from the Escrow Funds, Tsunami shall promptly deposit into the Escrow Account Tsunami's portion of such unpaid fees and in the event Escrow Agent deducts any unpaid fees for which any of the holders of Company Shares is responsible hereunder from the Escrow Funds, the Representatives shall promptly deposit into the Escrow Account such Stockholder's portion of such unpaid fees or if the Representatives fail to do so, the Escrow Agent shall deduct such amounts from the Disbursement Funds.
10.7. The Escrow Agent may resign by giving written notice in writing to Tsunami, Tornado and the Representatives of such resignation, specifying a date which such resignation shall take effect, which shall in no event be earlier than sixty (which counsel may be 60) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Funds. Immediately upon receipt of such notice, Tsunami, Tornado and the Representatives shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Tsunami, Tornado and the Representatives and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Funds. In the event that a successor Escrow Agent shall not be liable for so appointed by the date of resignation specified by the Escrow Agent, the Escrow Agent shall have the right to appoint as a successor Escrow Agent any mistake of fact or error of judgment or for national bank, and the parties hereto agree to accept any acts or omissions such successor Escrow Agent appointed by the Escrow Agent.
10.8. In the event of any kind unless caused by willful misconduct dispute between Tsunami, Tornado or gross negligence.
4.4 The Parties agree to indemnify the Representatives, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Funds or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may deposit the Escrow Funds with any court described in Section 11.10 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 10.8 are cumulative of all other rights which it may have by law or otherwise.
10.9. The parties to the Escrow Agreement (other than the Escrow Agent) hereby agree that, the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. Any payment required to be made pursuant to this Section 10.9 shall be paid from the Escrow Fund. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Tsunami and the Representatives (jointly and severally) agree that any payment required to be made pursuant to this Section 10.9 shall be paid 50% by Tsunami and 50% by the Representatives. The Escrow Agent may deduct any unpaid amounts from the Escrow Funds. In the event Escrow Agent deducts any unpaid amounts for which Tsunami is responsible under this Section 10.9 from the Escrow Funds, Tsunami shall promptly deposit into the Escrow Account Tsunami's portion of such unpaid amounts and in the event Escrow Agent deducts any unpaid amounts for which any of the Representatives are responsible hereunder from the Escrow Funds, the Representatives shall promptly deposit into the Escrow Account the Representatives' portion of such unpaid amounts or if the Representatives fail to do so, the Escrow Agent shall deduct such amounts from the Disbursement Funds.
10.10. Tsunami and the Representatives together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, Tsunami and the Representatives shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Funds to such successor Escrow Agent.
Appears in 1 contract
Provisions Concerning the Escrow Agent. 4.1 9.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
9.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 9.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
9.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
9.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
9.6. The Representative, on the one hand, and Tekelec, on the other hand, shall each upon demand pay to the Escrow Agent fifty-percent (50%) of the amount of for its services as set forth on Schedule III attached hereto and incorporated herein and reimburse Escrow Agent all reasonable expenses, including the reasonable fees and expenses of counsel, which counsel the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Funds. In the event the Escrow Agent deducts any unpaid fees for which Tekelec is responsible hereunder from the Escrow Funds, Tekelec shall promptly deposit into the Escrow Account Tekelec’s portion of such unpaid fees and in the event the Escrow Agent deducts any unpaid fee for which any of the holders of the Shares is responsible hereunder from the Escrow Funds, the Holders shall promptly deposit into the Escrow Account such Holder’s portion of such unpaid fees.
9.7. The Escrow Agent may resign by giving written notice to Tekelec, Camiant and the Representative of such resignation, specifying a date upon which such resignation shall take effect, which shall in no event be earlier than thirty (30) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Funds. Immediately upon receipt of such notice, Tekelec, Camiant and the Representative shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Tekelec, Camiant and the Representative and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Funds. If a successor escrow agent has not been appointed and has not accepted such appointment by the end of the 30-day period, Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor escrow agent, and the costs, expenses and reasonable attorney’s fees which Escrow Agent incurs in connection with such a proceeding shall be liable for paid by the parties hereto. Any company into which the Escrow Agent may be merged or with which it may be consolidated, or any mistake company to whom Escrow Agent may transfer a substantial amount of fact its Escrow business, shall be the Successor to the Escrow Agent without the execution or error of judgment or for any acts or omissions filing of any kind unless caused by willful misconduct paper or gross negligenceany further act on the part of any of the Parties, anything herein to the contrary notwithstanding.
4.4 The Parties agree to indemnify 9.8. In the event of any dispute between Tekelec, Camiant or the Representative, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Funds or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may deposit the Escrow Funds with any court described in Section 9.9 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 9.8 are cumulative of all other rights which it may have by law or otherwise.
9.9. The parties to the Escrow Agreement (other than the Escrow Agent) hereby agree that the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. Any payment required to be made pursuant to this Section 9.9 shall be paid from the Escrow Fund. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Tekelec and the Representative (jointly and severally) agree that any payment required to be made pursuant to this Section 9.9 shall be paid fifty percent (50%) by Tekelec and fifty percent (50%) by the Representative. The Escrow Agent may deduct any unpaid amounts from the Escrow Funds. In the event the Escrow Agent deducts any unpaid amounts for which Tekelec is responsible under this Section 9.9 from the Escrow Funds, Tekelec shall promptly deposit into the Escrow Account Tekelec’s portion of such unpaid amounts and in the event the Escrow Agent deducts any unpaid amounts for which the Representative is responsible hereunder from the Escrow Funds, the Representative shall promptly deposit into the Escrow Account the Representative’s portion of such unpaid amounts.
9.10. Tekelec and the Representative together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, Tekelec and the Representative shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Funds to such successor Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (Tekelec)
Provisions Concerning the Escrow Agent. 4.1 (a) The Escrow Agent shall be entitled to reasonable compensation for all services rendered and expenses incurred by it in the performance of its obligations hereunder. The Escrow Agent shall be entitled to employ such legal counsel and other experts as it may resign deem necessary to properly advise it in connection with its obligations hereunder, and be discharged from their duties hereunder at any time by giving notice may rely on the advice of such resignation to the Parties specifying a date when such resignation shall take effectcounsel, and may pay them reasonable compensation therefor. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal legal counsel's and other expert's fees and expenses shall take effect. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until the successor accepts the escrow and receives the fundsbe borne by PairGain.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so.
4.3 (b) The Escrow Agent shall not be liable for any action taken diminution of value of the Escrow Shares. The Escrow Agent shall have no authority to sell or omitted to be taken by it in good faith and believed by it to be authorized hereby otherwise dispose of or within encumber the rights or powers conferred Escrow Shares except as provided herein.
(c) Notwithstanding any other provisions herein contained, the Escrow Agent may at all times act upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice joint written instructions of counsel (which counsel may be of PairGain and the Stockholder Representative. The Escrow Agent's own choosing), and Agent shall not be liable for any mistake act done or omitted by it in accordance with such instructions or pursuant to the advice of fact counsel of its selection.
(d) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Agreement and instructions given to the Escrow Agent pursuant to this Agreement, and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreement between any or error all of judgment the parties hereto even though reference thereto may be made herein; provided, however, with the written consent of the Escrow Agent, this Agreement may be amended at any time by an instrument in writing signed by PairGain and the Stockholder Representative.
(e) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form, execution, validity or genuineness of documents or securities now or hereafter deposited hereunder, or of any endorsement thereof, or for any acts lack of endorsement thereon, or omissions for any description therein, nor shall it be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any kind unless caused by willful misconduct such document, security or gross negligence.
4.4 The Parties agree to indemnify endorsement of this Agreement, and the Escrow Agent and hold them harmless against shall be fully protected in relying upon any written notice, demand, certificate or document which it in good faith believes to be genuine.
(f) The Escrow Agent is authorized, in its sole discretion, to disregard any and all liabilities notices or instructions given by any of the parties hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for in this Agreement and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any of such events, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which the Escrow Agent is advised by legal counsel of its own choosing is binding upon it; and if the Escrow Agent 87 complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(g) The Escrow Agent may resign by giving sixty (60) days' advance written notice to PairGain and the Stockholder Representative and thereafter shall deliver the Escrow Shares to such substitute escrow agent as PairGain and the Stockholder Representative shall jointly direct in writing. If such direction to deliver to a substitute escrow agent is not received by the Escrow Agent within sixty (60) days after mailing such notice of resignation, it is unconditionally and irrevocably authorized, directed and empowered to file an interpleader motion and deliver all items held by it to a court of competent jurisdiction.
(h) PairGain and the Stockholder Representative together shall have the right to remove the Escrow Agent hereunder by giving notice in writing to the Escrow Agent, specifying the date upon which such removal shall take effect. In the event of such removal, PairGain and the Stockholder Representative agree that they will jointly appoint a successor Escrow Agent within thirty (30) days after the giving of such notice (which successor Escrow Agent shall be a bank or trust company organized under the laws of the United States of America or of the State of California having a combined capital and surplus of not less than $100,000,000), and the Escrow Agent hereby agrees that, upon receiving joint written instructions from PairGain and the Stockholder Representative shall, within ten (10) business days after such receipt, turn over and deliver to such successor Escrow Agent all of the Escrow Shares and other properties and amounts held by it pursuant to this Agreement in accordance with the terms of such written instructions.
(i) In consideration of its acceptance of the appointment as the Escrow Agent, PairGain agrees to indemnify and hold the Escrow Agent harmless as to any liability incurred by them hereunderit to any person, firm or corporation by reason of its having accepted the same or in carrying out any of the terms hereof (except in as such liability may arise out of or be based upon the case where such liabilities result from their own gross negligence or willful misconduct of the Escrow Agent), and to reimburse the Escrow Agent for all its reasonable expenses, including, among other things, counsel fees and court costs, incurred by reason of its position hereunder or gross negligenceactions taken pursuant hereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Pairgain Technologies Inc /Ca/)
Provisions Concerning the Escrow Agent. 4.1 Escrow Agent may resign and be discharged from their 7.1 The duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent shall be as escrow agent by giving notice of such removal to expressed herein and the Escrow Agent shall have no implied duties nor shall the permissive right or power to take any action be construed as a duty to take such action under any circumstances and specifying a date when such removal it shall take effect. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified not be liable except in the appropriate noticeevent of its gross negligence or willful misconduct.
7.2 The fees and expenses of the Escrow Agent (including the fees and expenses of legal counsel engaged pursuant to Section 7.10) shall be paid by EDO. The Escrow Agent need not take any action under the Escrow Agreement which may involve it in any expense or liability until indemnified to its satisfaction for any expense or liability it reasonably believes it may incur.
7.3 Any recitals contained herein shall be deemed to be those of the parties hereto other than the Escrow Agent.
7.4 The Escrow Agent shall continue not be required to serve until give any bond or surety or report to any court despite any statute, custom or rule to the successor accepts the escrow and receives the fundscontrary.
4.2 7.5 The Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrumentrequest, consent, certificate, order, affidavit, letter, telegram, or signature other paper or document believed by them it to be genuine and correct and to have been signed or presented sent by the proper party person or parties duly authorized to do sopersons.
4.3 7.6 The Escrow Agent may execute any of the duties under this Escrow Agreement by or through agents or receivers.
7.7 The Escrow Agent shall not be liable required to take notice or be deemed to have notice of any default or other fact or event under the Agreement unless the Escrow Agent shall be specifically notified in writing of such default, fact or event.
7.8 The Escrow Agent may at any time resign from the position created in the Escrow Agreement by giving thirty (30) days written notice prior to the proposed resignation date by registered or certified mail to EDO and the Common Stockholder Representative. However such resignation shall take effect only upon the appointment of, and acceptance by, a successor mutually acceptable to EDO and the Common Stockholder Representative. If EDO and the Common Stockholder Representative fail to agree on the identity of a successor Escrow Agent 15 days prior to the proposed resignation date, the existing Escrow Agent shall in its sole discretion choose the successor Escrow Agent. In the event of such resignation, the Escrow Agent shall deliver all funds, securities and other property held by it pursuant to this Agreement to the successor Escrow Agent. Upon receipt of such escrow funds the successor Escrow Agent shall be bound by all of the provisions hereof.
7.9 In the event the Escrow Agent becomes involved in litigation by reason hereof, it is hereby authorized to deposit with the Clerk of the Court in which the litigation is pending any and all funds, securities, or other property held by it pursuant hereto and thereupon shall stand fully relieved and discharged of any further duties hereunder. Also, in the event the Escrow Agent is threatened with litigation by reason hereof, it is hereby authorized to implead all interested parties in any court of competent jurisdiction and to deposit with the Clerk of such Court any such funds, securities, or other property held by it pursuant hereto and thereupon shall stand fully relieved and discharged of any further duties hereunder.
7.10 The Escrow Agent may engage legal counsel, who may be counsel for any action taken or omitted party to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice of counsel (which counsel may be of Escrow Agent's own choosing)Agreement, and shall not be liable for any mistake act or omission taken or suffered pursuant to the opinion of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligencesuch counsel.
4.4 The Parties agree to indemnify 7.11 Unless specifically required by the terms of the Escrow Agreement, the Escrow Agent need not take notice of or enforce any other document or relationship, including, without limiting the generality of the foregoing, any contract, settlement, arrangement, plan, assignment, pledge, release, decree or the like, but its duties shall be solely as set out in the Escrow Agreement.
7.12 EDO shall indemnify and hold them save harmless the Escrow Agent from and against any and all liabilities incurred by them hereunderloss, except liability or expense reasonably incurred, without gross negligence or willful misconduct on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability in the case where premises. This indemnity agreement shall survive the termination of the Escrow Agreement.
7.13 The appointment of the Escrow Agent hereunder may be terminated on the written agreement of EDO and the Common Stockholder Representative communicated by written notice to the Escrow Agent specifying the proposed date upon which such liabilities result from their own willful misconduct or gross negligencetermination shall take effect providing that no such termination shall be effective until the appointment of and acceptance by a successor Escrow Agent. In the event of such termination, EDO and the Common Stockholder Representative shall before the date of such termination appoint a mutually acceptable successor Escrow Agent. If EDO and the Common Stockholder Representative fail to agree on the identity of a successor Escrow Agent 15 days prior to the date of such proposed termination, the original Escrow Agent shall, in its sole discretion, choose the successor Escrow Agent. In the event of such termination, the Escrow Agent shall deliver all funds, securities and other property held by it pursuant to this Agreement to the successor Escrow Agent. Upon receipt of such escrow funds, the successor Escrow Agent shall be bound by all of the provisions hereof.
Appears in 1 contract
Provisions Concerning the Escrow Agent. 4.1 (a) The Indemnification Escrow Agent shall be entitled to reasonable compensation for all services rendered and expenses incurred by it in the performance of its obligations hereunder (on the basis of its regular fees as set forth on Exhibit A attached hereto). The Indemnification Escrow Agent shall be entitled to employ such legal counsel and other experts as it may resign deem necessary to properly advise it in connection with its obligations hereunder, and be discharged from their duties hereunder at any time by giving notice may rely on the advice of such resignation to the Parties specifying a date when such resignation shall take effectcounsel, and may pay them reasonable compensation therefor. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Indemnification Escrow Agent and specifying a date when such removal legal counsel's and other expert's fees and expenses shall take effect. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until the successor accepts the escrow and receives the fundsbe borne by Parent.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so.
4.3 (b) The Indemnification Escrow Agent shall not be liable for any action taken diminution of value of the Indemnification Escrow Shares. The Indemnification Escrow Agent shall have no authority to sell or omitted to be taken by it in good faith and believed by it to be authorized hereby otherwise dispose of or within encumber the rights or powers conferred Indemnification Escrow Shares except as provided herein.
(c) Notwithstanding any other provisions herein contained, the Indemnification Escrow Agent may at all times act upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice joint written instructions of counsel (which counsel may be of Parent and the Indemnification Representative. The Indemnification Escrow Agent's own choosing), and Agent shall not be liable for any mistake act done or omitted by it in accordance with such instructions or pursuant to the advice of fact counsel of its selection.
(d) The duties and responsibilities of the Indemnification Escrow Agent shall be limited to those expressly set forth in this Agreement and instructions given to the Indemnification Escrow Agent pursuant to this Agreement, and the Indemnification Escrow Agent shall not be subject to, nor obligated to recognize, any other agreement between any or error all of judgment the parties hereto even though reference thereto may be made herein; provided, however, with the written consent of the Indemnification Escrow Agent, this Agreement may be amended at any time by an instrument in writing signed by Parent and the Indemnification Representative. The Indemnification Escrow Agent shall advise Parent and the Indemnification Representative from time to time, upon request, as to (i) the number of Indemnification Escrow Shares represented by the certificate held by the Indemnification Escrow Agent, and (ii) the number of Indemnification Escrow Shares distributed by the Indemnification Escrow Agent to the Company Shareholders.
(e) The Indemnification Escrow Agent shall not be responsible for the sufficiency or accuracy of the form, execution, validity or genuineness of documents or securities now or hereafter deposited hereunder, or of any endorsement thereof, or for any acts lack of endorsement thereon, or omissions for any description therein, nor shall it be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any kind unless caused by willful misconduct such document, security or gross negligenceendorsement of this Agreement, and the Indemnification Escrow Agent shall be fully protected in relying upon any written notice, demand, certificate or document which it in good faith believes to be genuine.
4.4 (f) The Parties agree to indemnify the Indemnification Escrow Agent and hold them harmless against is authorized, in its sole discretion, to disregard any and all liabilities notices or instructions given by any of the parties hereto or by any other person, firm or corporation, except such notices or instructions as are herein provided for in this Agreement and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any of such events, the Indemnification Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which the Indemnification Escrow Agent is advised by legal counsel of its own choosing is binding upon it; and if the Indemnification Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(g) The Indemnification Escrow Agent may resign by giving sixty (60) days' advance written notice to Parent and the Indemnification Representative and thereafter shall deliver the Indemnification Escrow Shares to such substitute escrow agent as Parent and the Indemnification Representative shall jointly direct in writing. If such direction to deliver to a substitute escrow agent is not received by the Indemnification Escrow Agent within sixty (60) days after mailing such notice of resignation, it is unconditionally and irrevocably authorized, directed and empowered to file an interplea motion and deliver all items held by it to a court of competent jurisdiction.
(h) In consideration of its acceptance of the appointment as the Indemnification Escrow Agent, the Parent agrees to indemnify and hold the Indemnification Escrow Agent harmless as to any liability incurred by them hereunderit to any person, firm or corporation by reason of its having accepted the same or in carrying out any of the terms hereof (except in as such liability may arise out of or be based upon the case where such liabilities result from their own gross negligence, bad faith or willful misconduct of the Indemnification Escrow Agent), and to reimburse the Indemnification Escrow Agent for all its reasonable expenses, including, among other things, counsel fees and court costs, incurred by reason of its position hereunder or gross negligenceactions taken pursuant hereto.
Appears in 1 contract
Provisions Concerning the Escrow Agent. 4.1 Escrow Agent may resign and be discharged from their 12.1 The duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent shall be as escrow agent by giving notice of such removal to expressed herein and the Escrow Agent shall act as a depository only and specifying shall have no implied duties nor shall the permissive right or power to take any action be construed as a date when duty to take such removal shall take effect. Upon such notice, action under any circumstances and the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until not be liable except in the successor accepts the escrow and receives the fundsevent of its negligence or willful misconduct.
4.2 12.2 For its services hereunder, the Escrow Agent undertakes shall receive a flat fee of $2,000 plus reasonable fees for investment of the Escrow Funds hereunder from time to perform such time, provided, however, that if this Escrow Agreement shall continue beyond the Final Distribution Date, the Escrow Agent shall be entitled to an additional fee of $75 per month for each month or portion thereof that this Escrow Agreement extends beyond the Final Distribution Date. In addition, the Escrow Agent shall be entitled to reimbursement on request for all expenses, disbursements and advances, including reasonable attorneys' and accounting fees incurred or made by the Escrow Agent in the performance of its duties as are specifically set forth hereunder. Such fees and expenses shall be paid 50% by Sellers and 50% by Buyer.
12.3 Any recitals contained herein and may conclusively relyshall be deemed to be those of the parties hereto other than the Escrow Agent.
12.4 The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, and custom or rule to the contrary.
12.5 The Escrow Agent shall be protected in acting or refraining from acting, on upon any written notice, instrumentrequest, consent, certificate, order, affidavit, letter, telegram, or signature other paper or document believed by them it to be genuine and correct and to have been signed or presented sent by the proper party person or parties duly authorized to do sopersons as contemplated herein.
4.3 12.6 The Escrow Agent may execute any of the duties under this Escrow Agreement by or through agents or receivers.
12.7 The Escrow Agent shall not be liable for required to take notice or be deemed to have notice of any action taken default or omitted to other fact or event under the Acquisition Agreement unless the Escrow Agent shall be taken by it specifically notified in good faith and believed by it to be authorized hereby writing of such default, fact or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and event in accordance with the advice provisions hereof.
12.8 The Escrow Agent may at any time resign from the position created in this Escrow Agreement by giving thirty (30) days written notice by registered or certified mail to each of counsel (which counsel may Buyer and Sellers and such resignation shall take effect at the end of such thirty days or upon earlier appointment of a successor by Buyer and Sellers. If the Escrow Agent resigns and Buyer and Sellers cannot agree upon its successor within 30 days from the notice date of such resignation, its successor under this Escrow Agreement shall be a trust company designated by the Escrow Agent in its sole discretion. Upon the appointment of the Escrow Agent's own choosing)successor, such successor or escrow agent shall assume all powers, rights and duties of the Escrow Agent hereunder without any further action
12.9 In the event the Escrow Agent becomes involved in litigation by reason hereof, it is hereby authorized to deposit with the clerk of the court in which the litigation is pending any and all funds, securities, or other property held by it pursuant hereto, less its fees, expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties hereunder. Also, in the event the Escrow Agent is threatened with litigation by reason hereof, it is hereby authorized to implead all interested parties in any court of competent jurisdiction and to deposit with the clerk of such court any such funds, securities, or other property held by it pursuant hereto, less its fees, expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties hereunder.
12.10 The Escrow Agent may engage legal counsel, who shall not be counsel for any other party to this Escrow Agreement, and shall not be liable for any mistake act or omission taken or suffered pursuant to the opinion or advice of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligencesuch counsel.
4.4 The Parties agree to indemnify 12.11 Unless specifically required by the terms of this Escrow Agreement, the Escrow Agent need not take notice of or enforce any other document or relationship, including, without limiting the generality of the foregoing, any contract, settlement, arrangement, plan, assignment, pledge, release, decree or the like, but its duties shall be solely as set out in this Escrow Agreement.
12.12 The parties to this Escrow Agreement (other than the Escrow Agent) hereby agree, jointly and hold them severally, to indemnify and save harmless the Escrow Agent from and against any and all liabilities incurred by them hereunderloss, except liability or expense reasonably incurred, without negligence or bad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability in the case where such liabilities result from their own willful misconduct or gross negligencepremises. This indemnity agreement shall survive the termination of this Escrow Agreement. Notwithstanding the foregoing, Buyer and Sellers agree that any payment required to be made pursuant to this Section 12.12 shall be paid 50% by Buyer and 50% by Sellers.
Appears in 1 contract
Samples: Escrow Agreement (Talx Corp)
Provisions Concerning the Escrow Agent. 4.1 (a) The Escrow Agent shall be entitled to reasonable compensation for all services rendered and expenses incurred by it in the performance of its obligations hereunder. The Escrow Agent shall be entitled to employ such legal counsel and other experts as it may resign deem necessary to properly advise it in connection with its obligations hereunder, and be discharged from their duties hereunder at any time by giving notice may rely on the advice of such resignation to the Parties specifying a date when such resignation shall take effectcounsel, and may pay them reasonable compensation therefor. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal legal counsel's and other expert's fees and expenses shall take effect. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until the successor accepts the escrow and receives the fundsbe borne by Parent.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so.
4.3 (b) The Escrow Agent shall not be liable for any action taken diminution of value of the Escrow Shares. The Escrow Agent shall have no authority to sell or omitted to be taken by it in good faith and believed by it to be authorized hereby otherwise dispose of or within encumber the rights or powers conferred Escrow Shares except as provided herein.
(c) Notwithstanding any other provisions herein contained, the Escrow Agent may at all times act upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice joint written instructions of counsel (which counsel may be of Parent and a Seller Representative. The Escrow Agent's own choosing), and Agent shall not be liable for any mistake act done or omitted by it in accordance with such instructions or pursuant to the advice of fact counsel of its selection.
(d) The duties and responsibilities of the Escrow Agent shall be limited to those expressly set forth in this Agreement and instructions given to the Escrow Agent pursuant to this Agreement, and the Escrow Agent shall not be subject to, nor obligated to recognize, any other agreement between any or error all of judgment the parties hereto even though reference thereto may be made herein; provided, however, with the written consent of the Escrow Agent, this -------- ------- Agreement may be amended at any time by an instrument in writing signed by Parent and a Seller Representative. The Escrow Agent shall advise Parent and the Seller Representatives from time to time, upon request, as to (i) the number of Escrow Shares represented by certificates held by the Escrow Agent, and (ii) the number of Escrow Shares distributed by the Escrow Agent to the Sellers.
(e) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form, execution, validity or genuineness of documents or securities now or hereafter deposited hereunder, or of any endorsement thereof, or for any acts lack of endorsement thereon, or omissions for any description therein, nor shall it be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any kind unless caused by willful misconduct such document, security or gross negligence.
4.4 The Parties agree to indemnify endorsement of this Agreement, and the Escrow Agent and hold them harmless against shall be fully protected in relying upon any written notice, demand, certificate or document which it in good faith believes to be genuine.
(f) The Escrow Agent is authorized, in its sole discretion, to disregard any and all liabilities notices or instructions given by any of the parties hereto or by any other person, firm or corporation, except only such notices or instructions as are herein provided for in this Agreement and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any of such events, the Escrow Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which the Escrow Agent is advised by legal counsel of its own choosing is binding upon it; and if the Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(g) The Escrow Agent may resign by giving sixty (60) days advance written notice to Parent and the Seller Representatives and thereafter shall deliver the Escrow Shares to such substitute escrow agent as Parent and the Seller Representatives shall jointly direct in writing. If such direction to deliver to a substitute escrow agent is not received by the Escrow Agent within sixty (60) days after mailing such notice of resignation, it is unconditionally and irrevocably authorized, directed and empowered to file an interplea motion and deliver all items held by it to a court of competent jurisdiction.
(h) In consideration of its acceptance of the appointment as the Escrow Agent, Parent agrees to indemnify and hold the Escrow Agent harmless as to any liability incurred by them hereunderit to any person, firm or corporation by reason of its having accepted the same or in carrying out any of the terms hereof (except in as such liability may arise out of or be based upon the case where such liabilities result from their own gross negligence or willful misconduct of the Escrow Agent), and to reimburse the Escrow Agent for all its reasonable expenses, including, among other things, counsel fees and court costs, incurred by reason of its position hereunder or gross negligenceactions taken pursuant hereto.
Appears in 1 contract
Samples: Escrow Agreement (Cambridge Technology Partners Massachusetts Inc)
Provisions Concerning the Escrow Agent. 4.1 10.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
10.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 10.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
10.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
10.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
10.6. The Representatives, on the one hand, and Tekelec, on the other hand, shall each upon demand pay to the Escrow Agent 50% of the amount of all reasonable expenses, including the reasonable fees and expenses of counsel, which the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Funds. In the event Escrow Agent deducts any unpaid fees for which Tekelec is responsible hereunder from the Escrow Funds, Tekelec shall promptly deposit into the Escrow Account Tekelec's portion of such unpaid fees and in the event Escrow Agent deducts any unpaid fees for which any of the holders of Company Shares is responsible hereunder from the Escrow Funds, the Representatives shall promptly deposit into the Escrow Account such Stockholder's portion of such unpaid fees or if the Representatives fail to do so, the Escrow Agent shall deduct such amounts from the Disbursement Funds.
10.7. The Escrow Agent may resign by giving written notice in writing to Tekelec, Taqua and the Representatives of such resignation, specifying a date which such resignation shall take effect, which shall in no event be earlier than sixty (which counsel may be 60) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Funds. Immediately upon receipt of such notice, Tekelec, Taqua and the Representatives shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Tekelec, Taqua and the Representatives and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Funds. In the event that a successor Escrow Agent shall not be liable for so appointed by the date of resignation specified by the Escrow Agent, the Escrow Agent shall have the right to appoint as a successor Escrow Agent any mistake of fact or error of judgment or for national bank, and the parties hereto agree to accept any acts or omissions such successor Escrow Agent appointed by the Escrow Agent.
10.8. In the event of any kind unless caused by willful misconduct dispute between Tekelec, Taqua or gross negligence.
4.4 The Parties agree to indemnify the Representatives, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Funds or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may deposit the Escrow Funds with any court described in Section 11.10 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 10.8 are cumulative of all other rights which it may have by law or otherwise.
10.9. The parties to the Escrow Agreement (other than the Escrow Agent) hereby agree that, the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. Any payment required to be made pursuant to this Section 10.9 shall be paid from the Escrow Fund. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Tekelec and the Representatives (jointly and severally) agree that any payment required to be made pursuant to this Section 10.9 shall be paid 50% by Tekelec and 50% by the Representatives. The Escrow Agent may deduct any unpaid amounts from the Escrow Funds. In the event Escrow Agent deducts any unpaid amounts for which Tekelec is responsible under this Section 10.9 from the Escrow Funds, Tekelec shall promptly deposit into the Escrow Account Tekelec's portion of such unpaid amounts and in the event Escrow Agent deducts any unpaid amounts for which any of the Representatives are responsible hereunder from the Escrow Funds, the Representatives shall promptly deposit into the Escrow Account the Representatives' portion of such unpaid amounts or if the Representatives fail to do so, the Escrow Agent shall deduct such amounts from the Disbursement Funds.
10.10. Tekelec and the Representatives together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, Tekelec and the Representatives shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Funds to such successor Escrow Agent.
Appears in 1 contract
Samples: Escrow Agreement (Tekelec)
Provisions Concerning the Escrow Agent. 4.1 9.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
9.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 9.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
9.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
9.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
9.6. Subject to Section 4.3, the Escrow Stockholders, on the one hand, and Parent, on the other hand, shall each upon demand pay to the Escrow Agent 50% of the amount of all reasonable expenses, including the reasonable fees and expenses of counsel, which the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Deposit. In the event Escrow Agent deducts any unpaid fees for which Parent is responsible hereunder from the Escrow Deposit, Parent shall promptly deposit into the escrow account, Parent's portion of such unpaid fees and in the event Escrow Agent deducts any unpaid fees for which the Representatives are responsible hereunder from the Escrow Deposit (other than as provided in Section 4.3), the Representatives shall promptly deposit into the escrow account their portion of such unpaid fees.
9.7. The Escrow Agent may resign by giving written notice in writing to Parent and the Representatives of such resignation, specifying a date which counsel may such resignation shall take effect, which shall in no event be earlier than sixty (60) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Deposit. Immediately upon receipt of such notice, Parent and the Representatives shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Parent and the Representatives and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Deposit. In the event that a successor Escrow Agent shall not be liable for so appointed by the date of resignation specified by the Escrow Agent, the Escrow Agent shall have the right to appoint as a successor Escrow Agent any mistake of fact or error of judgment or for national bank, and the parties hereto agree to accept any acts or omissions such successor Escrow Agent appointed by the Escrow Agent.
9.8. In the event of any kind unless caused by willful misconduct dispute between Parent or gross negligence.
4.4 The Parties agree to indemnify the Representatives or the Escrow Stockholders, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Deposit or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may deposit the Escrow Deposit with any court described in Section 11.10 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 9.8 are cumulative of all other rights which it may have by law or otherwise.
9.9. The Escrow Stockholders and Parent hereby agree that the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. Any payment required to be made pursuant to this Section 9.9 shall be paid from the Escrow Deposit. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Parent and the Representatives agree that any payment required to be made pursuant to this Section 9.9 shall be paid 50% by Parent and 50% by the Escrow Stockholders (subject to Section 4.3). The Escrow Agent may deduct any unpaid amounts from the Escrow Deposit. In the event Escrow Agent deducts any unpaid amounts for which Parent is responsible under this Section 9.9 from the Escrow Deposit, Parent shall promptly deposit into the escrow account Parent's portion of such unpaid amounts and in the event Escrow Agent deducts any unpaid amounts for which the Representatives are responsible hereunder from the Escrow Deposit (subject to Section 4.3), the Representatives shall promptly deposit into the escrow account their portion of such unpaid amounts.
9.10. Parent and the Representatives together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, Parent and the Representatives shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Deposit to such successor Escrow Agent.
Appears in 1 contract
Samples: Escrow Agreement (Tekelec)
Provisions Concerning the Escrow Agent. 4.1 Escrow Agent may resign and be discharged from their duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove To induce the Escrow Agent as escrow agent to act hereunder, it is further agreed by giving notice UTC and UP Sub that:
6.1 The Escrow Agent shall not be under any duty to give the Escrow Securities any greater degree of care than it gives its own similar property.
6.2 The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct, and, except with respect to claims based upon such removal to gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, UTC shall indemnify and hold harmless the Escrow Agent from and specifying a date when such removal shall take effect. Upon such noticeagainst any and all losses, the Parties shall appoint a successor escrow agentliabilities, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified claims, actions, damages, costs and expenses arising out of and in the appropriate notice. connection with this Escrow Agreement.
6.3 The Escrow Agent shall continue be entitled to serve until the successor accepts the escrow and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively relyrely upon any order, and shall be protected in acting or refraining from actingjudgment, on any written certification, demand, notice, instrument, or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by them it in good faith to be genuine and may assume, if in good faith, that any person purporting to have give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been signed or presented by the proper party or parties duly authorized to do so.
4.3 6.4 The Escrow Agent shall not be liable for any action taken or omitted to be taken by it perform only the duties expressly set forth herein, and the Escrow Agent may act in good faith and believed by it to be authorized hereby or within in the rights or powers conferred upon it exercise of its own best judgment in carrying out its duties hereunder, nor for .
6.5 The Escrow Agent at any action taken or omitted to be taken by it in good faith, and in accordance with the advice of counsel (which counsel time may be discharged from its duties and obligations hereunder by the delivery to it of notice of termination signed by UTC and Cookx. Xxe Escrow Agent's own choosing)Agent at any time may resign by giving written notice to such effect to UTC and Cookx. Xxon any such termination or resignation, and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligence.
4.4 The Parties agree to indemnify the Escrow Agent and hold them harmless against shall deliver any and all liabilities incurred property in escrow at that time to a successor escrow agent designated by them hereunderUTC and Cookx xx writing, except whereupon such initial Escrow Agent shall be discharged of any and all further obligations arising in the case where such liabilities result from their own willful misconduct or gross negligenceconnection with this Escrow Agreement.
Appears in 1 contract
Provisions Concerning the Escrow Agent. 4.1 10.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
10.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo. Concurrently with the execution of this Escrow Agreement, Parent shall provide the Escrow Agent with a list of authorized signers in the form of Exhibit C hereto.
4.3 10.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
10.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
10.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
10.6. The Representative, on the one hand, and Parent, on the other hand, shall each upon demand pay to the Escrow Agent fifty percent (50%) of the amount of all reasonable fees and expenses of the Escrow Agent as further described in Exhibit B, including the reasonable fees and expenses of counsel, which counsel the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Funds. In the event the Escrow Agent deducts any unpaid fees for which Parent is responsible hereunder from the Escrow Funds, Parent shall promptly deposit into the Escrow Account Parent’s portion of such unpaid fees and in the event the Escrow Agent deducts any unpaid fees for which any of the Stockholders is responsible hereunder from the Escrow Funds, the Representative shall promptly deposit into the Escrow Account such Stockholder’s portion of such unpaid fees.
10.7. The Escrow Agent may resign by giving written notice to Parent and the Representative of such resignation, specifying a date upon which such resignation shall take effect, which shall in no event be earlier than sixty (60) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Funds. Immediately upon receipt of such notice, Parent and the Representative shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Parent and the Representative and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Funds. In the event that a successor Escrow Agent shall not be liable for any mistake so appointed by the date of fact or error resignation specified by the Escrow Agent, the Escrow Agent shall have the right to petition a court of judgment or for any acts or omissions competent jurisdiction to appoint a successor escrow agent.
10.8. In the event of any kind unless caused by willful misconduct dispute between Parent or gross negligence.
4.4 The Parties agree to indemnify the Representative, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Funds or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may (a) refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be given a direction in writing by the parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent and/or (b) deposit the Escrow Funds with any court described in Section 10.9 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 10.8 are cumulative of all other rights which it may have by law or otherwise.
10.9. The Escrow Agent is hereby severally and not jointly indemnified by Parent and Representative from and against any loss, liability or expense reasonably incurred, including the reasonable fees and expenses of counsel, which the Escrow Agent may incur, and its normal fees for all liabilities incurred by them services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder, except in the case where such liabilities result from their own without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Parent and the Representative agree that any payment required to be made pursuant to this Section 10.9 shall be paid fifty percent (50%) by Parent and fifty percent (50%) by the Representative. The Escrow Agent may deduct any unpaid amounts from the Escrow Funds. In the event the Escrow Agent deducts any unpaid amounts for which Parent is responsible under this Section 10.9 from the Escrow Funds, Parent shall promptly deposit into the Escrow Account Parent’s portion of such unpaid amounts and in the event the Escrow Agent deducts any unpaid amounts for which the Representative is responsible hereunder from the Escrow Funds, the Representative shall promptly deposit into the Escrow Account the Representative’s portion of such unpaid amounts.
10.10. Parent and the Representative together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, Parent and the Representative shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Funds to such successor Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (Ixia)
Provisions Concerning the Escrow Agent. 4.1 8.1 Escrow Agent may resign and be discharged from their its duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving joint notice of such removal to the Escrow Agent and specifying a date when such removal shall take effect. Upon such notice, the Parties shall jointly appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. Escrow Agent shall continue to serve until the its successor accepts the escrow its appointment as successor Escrow Agent and receives the fundsEscrowed Funds.
4.2 8.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them it to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so.
4.3 8.3 The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice of counsel (which counsel may be of Escrow Agent's own choosing), and shall not be liable for any mistake of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligence.
4.4 8.4 The Parties agree to indemnify the Escrow Agent and hold them it harmless against any and all liabilities incurred by them it hereunder, except in the case where such liabilities result from their its own willful misconduct or gross negligence.
Appears in 1 contract
Samples: Escrow Agreement (General Employment Enterprises Inc)
Provisions Concerning the Escrow Agent. 4.1 Escrow Agent may resign and be discharged from their duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove To induce the Escrow Agent as escrow agent by giving notice of such removal to act here under, it is agreed that:
5.1 Subject to Section 5.3, the Escrow Agent and specifying a date when such removal shall take effect. Upon such notice, not be under any duty to give the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate noticeEscrow Property any greater degree of care than it gives its own similar property. Escrow Agent shall continue not be required to serve invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest and funds will remain uninvested until the successor accepts Escrow Agent receives in writing specific investment instructions from the escrow and receives parties in accordance with the fundsnotice sections of this agreement.
4.2 5.2 Only the express provisions of this Agreement shall specify the duties and obligations of the Escrow Agent undertakes with respect to perform such any and all matters pertinent hereto and no other duties as are specifically or obligations shall be implied. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto, but only those set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on any written notice, instrument, or signature believed by them to be genuine and to have been signed or presented by the proper party or parties duly authorized to do sothis Agreement.
4.3 5.3 The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith except to the extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence, willful misconduct or bad faith was the cause of any loss to the parties. All other parties to this Agreement hereto shall jointly and severally indemnify and hold harmless the Escrow Agent and its directors agents and employees and any successor Escrow Agent (the “indemnities”) from and against, any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorney’s fees and disbursements, arising out of and in connection with this Agreement or from the Escrow Agent following any instructions or other directions given by the parties to this Agreement, or any thereof, in accordance with the terms of this Agreement. Without limiting the foregoing, the Escrow Agent shall in no event be liable in connection with its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms thereof, including without limitation any liability for any delays (not resulting from its negligence, willful misconduct or bad faith) in the investment or reinvestment of the Escrow Property, or any loss of interest incident to any such delays. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Agreement. The Escrow Agent shall be entitled to reasonably rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity thereof, or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Escrow Agent may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized hereby to do so. The Escrow Agent is under no duty to inquire into or within investigate the rights validity, accuracy or powers conferred upon content of any such document reasonably believed by it hereunder, nor for any action taken or omitted to be taken genuine.
5.4 The Escrow Agent may act upon any of its powers or perform any of its duties pursuant to this Agreement directly or through agents or attorneys (and shall only be liable for the selection of such agent or attorney and for gross negligence and willful misconduct of its agents) and may consult with counsel, accountants and other skilled persons to be selected and retained by it in good faith, and in accordance with the advice of counsel (which counsel may be of it. The Escrow Agent's own choosing), and Agent shall not be liable for anything done, suffered or omitted in good faith in accordance with such advice or opinion, other than to the extent that a court of competent jurisdiction determines that the Escrow Agent’s gross negligence, willful misconduct or bad faith was the primary cause of any mistake loss arising as a result thereof.
5.5 The Escrow Agent does not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Seller, on the one hand, and Buyer on the other hand, shall each be required to advance to Escrow Agent one-half of fact any amounts required to paid by Escrow Agent, or error of judgment or shall reimburse the Escrow Agent after payment and upon request therefore, for any acts and all transfer taxes or omissions other taxes relating to the Escrow Property incurred in connection herewith, and shall indemnify and hold harmless the Escrow Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Escrow Property shall be subjected to withholding regulations then in force with respect to relevant taxes. It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on investment of funds which are a part of the Escrow Property and is not responsible for any other reporting. This Section 5.5 shall survive any termination of this Agreement or the resignation of the Escrow Agent.
5.6 The Escrow Agent makes no representation as to the validity, value, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
5.7 The Escrow Agent shall not be called upon to advise any party of the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
5.8 The Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Property to any successor Escrow Agent jointly designated by the other parties hereto in writing or to 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, and the other parties hereto may at any time terminate the Escrow Agent (and any successor Escrow Agent) by delivering a written notice thereof signed by each of the other parties, to Escrow Agent. The resignation or termination of the Escrow Agent will take effect on the earlier of (i) the appointment of a successor or (ii) the day which is thirty (30) Business Days after the date of delivery of its written notice of resignation to the other parties hereto or the written notice to the Escrow Agent of its termination, as applicable. 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 safe keep the Escrow Property until receipt of a designation of successor Escrow Agent or a joint written disposition instructions by the other parties hereto or a final order of a court of competent jurisdiction. Except as otherwise agreed in writing by the parties, no Escrow Property shall be released from the Escrow Account unless and until a successor Escrow Agent has been appointed in accordance with this Section 5.8. Anything in this Escrow Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind unless caused by willful misconduct or gross negligence.
4.4 The Parties agree whatsoever (including but not limited to indemnify lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and hold them harmless against regardless of the form of action.
5.9 The Escrow Agent shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and all liabilities incurred by them may rely without any liability upon the contents thereof.
5.10 In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Property, or in the event that the Escrow Agent in good faith is in doubt as to what action it should take hereunder, except the Escrow Agent shall be entitled to retain the Escrow Property and its sole obligation shall be to keep safely all property held under the terms of this Agreement until the Escrow Agent shall have received (i) a final non-appealable order or a court of competent jurisdiction directing delivery of the Escrow Property; or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Property, in which event the case where Escrow Agent shall disburse the Escrow Property in accordance with such liabilities result order or agreement. Any court order shall be accompanied by a legal opinion of counsel for the presenting party satisfactory to the Escrow Agent to the effect that said court order is final and non-appealable. The Escrow Agent shall act on such court order and legal opinion without further inquiry.
5.11 The Seller, on the one hand, and Buyer on the other hand, shall each be responsible for one-half of the compensation to the Escrow Agent for the services to be rendered by the Escrow Agent hereunder, which shall be the aggregate amount of USD $3,500.00 at the time of execution of this Agreement and USD $1,750.00 per annum to each Seller and Buyer, which in total is USD $3,500.00 per annum without pro ration for partial years thereafter, and agree to each reimburse, in equal one-half shares, the Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any fees or expenses of the Escrow Agent or its counsel which are not paid as provided for herein may be taken from their own willful misconduct or gross negligenceany property held by the Escrow Agent hereunder.
Appears in 1 contract
Provisions Concerning the Escrow Agent. 4.1 9.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
9.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 9.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
9.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
9.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
9.6. The Representative, on the one hand, and Parent, on the other hand, shall each upon demand pay to the Escrow Agent 50% of the amount of all reasonable expenses, including the reasonable fees and expenses of counsel, which the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Deposit. In the event Escrow Agent deducts any unpaid fees for which Parent is responsible hereunder from the Escrow Deposit, Parent shall promptly deposit into the escrow account, Parent's portion of such unpaid fees and in the event Escrow Agent deducts any unpaid fees for which the Representative is responsible hereunder from the Escrow Deposit, the Representative shall promptly deposit into the escrow account their portion of such unpaid fees.
9.7. The Escrow Agent may resign by giving written notice in writing to Parent and the Representative of such resignation, specifying a date which such resignation shall take effect, which shall in no event be earlier than sixty (which counsel may be 60) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Deposit. Immediately upon receipt of such notice, Parent and the Representative shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Parent and the Representative and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Deposit. In the event that a successor Escrow Agent shall not be liable for so appointed by the date of resignation specified by the Escrow Agent, the Escrow Agent shall have the right to appoint as a successor Escrow Agent any mistake of fact or error of judgment or for national bank, and the parties hereto agree to accept any acts or omissions such successor Escrow Agent appointed by the Escrow Agent.
9.8. In the event of any kind unless caused by willful misconduct dispute between Parent or gross negligence.
4.4 The Parties agree to indemnify the Representative, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Deposit or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may deposit the Escrow Deposit with any court described in Section 10.10 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 9.8 are cumulative of all other rights which it may have by law or otherwise.
9.9. The Representative and Parent hereby agree that the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. Any payment required to be made pursuant to this Section 9.9 shall be paid from the Escrow Deposit. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Parent and the Representative agrees that any payment required to be made pursuant to this Section 9.9 shall be paid 50% by Parent and 50% by the Representative. The Escrow Agent may deduct any unpaid amounts from the Escrow Deposit. In the event Escrow Agent deducts any unpaid amounts for which Parent is responsible under this Section 9.9 from the Escrow Deposit, Parent shall promptly deposit into the escrow account Parent's portion of such unpaid amounts and in the event Escrow Agent deducts any unpaid amounts for which the Representative is responsible hereunder from the Escrow Deposit, the Representative shall promptly deposit into the escrow account their portion of such unpaid amounts.
Appears in 1 contract
Samples: Escrow Agreement (Tekelec)
Provisions Concerning the Escrow Agent. 4.1 The following provisions will control the rights, duties, liabilities, privileges and immunities of the Escrow Agent:
(a) The Escrow Agent is not a party to, and is not bound by nor (except as specifically provided herein) charged with notice of, any agreement between any one or more parties hereto, out of which this escrow may resign and be discharged from their duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effectarise. The Parties may jointly remove Escrow Agent does not assume any responsibility or liability for any transactions between Micrel and the Synergy Representative other than this Escrow Agreement.
(b) The duties of the Escrow Agent hereunder are only such as escrow agent by giving notice of such removal to are herein specifically provided, being purely ministerial in nature, and the Escrow Agent and specifying a date when such removal shall take effect. Upon such noticehave no implied duties or obligations nor any responsibility in respect of any of the cash, property or items deposited with it other than to faithfully follow the Parties shall appoint a successor escrow agent, such successor escrow agent instructions contained herein or given to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. it as provided herein.
(c) The Escrow Agent shall continue acts hereunder as a depository. All deposits are warranted by the depositing party to serve until be valid deposits. The Escrow Agent is not responsible for or liable in any manner whatever for the successor accepts sufficiency, correctness, genuiness and validity of any cash deposit, security, document, or other item, which is a part of the escrow and receives Escrowed Cash or for any claim or action by any person, firm, corporation or trustee concerning the fundsright or power of any depositor to make any transfer or the validity of the transfer of any part of the Escrowed Cash to Escrow Agent or for the value, validity, collectibility or marketability of any investment of the Escrowed Cash.
4.2 (d) The Escrow Agent undertakes to perform such duties as are specifically set forth herein and may conclusively rely, and shall be protected in acting or refraining from acting, on hereunder may assume the genuineness of any written notice, instrumentrequest, waiver, consent, certificate, receipt, authorization, power of attorney, or signature believed by them other paper or document which the Escrow Agent in good faith believes to be genuine and what it purports to have been signed or presented by the proper party or parties duly authorized to do sobe.
4.3 (e) The Escrow Agent shall not be liable for any action taken consequential or omitted special damages. The Escrow Agent will not be liable for anything which it may do or refrain from doing in connection herewith, except to the extent held by a final unappealable judgment of a court of competent jurisdiction to be taken by the direct result of its own gross negligence or willful misconduct.
(f) The Escrow Agent may consult with legal counsel (including in-house counsel) in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it will incur no liability if it acts in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, and in accordance with the advice reasonable opinion and instructions of such counsel as to such matters. The Escrow Agent shall not be required to institute or defend any action (including interpleader) or lawsuit brought in connection with Escrowed Cash. In the event of its participation in any such legal proceeding, the Escrow Agent shall receive full indemnity and shall be compensated for its services and reimbursed for its expenses associated therewith.
(g) In the event of any disagreement between any of the parties to this Agreement, or between them or any of them and any other person or entity resulting in adverse claims or demands being made in connection with the subject of this Agreement, or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may refuse to take any action hereunder so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent will not be or become liable in any way or to any person or entity for its failure or refusal to act, and the Escrow Agent will be entitled either to: (i) continue to refrain from acting until the rights of all parties have been determined by a final and unappealable order of the court of competent jurisdiction, or all differences have been adjusted and all doubt resolved by agreement among all the interested persons or entities, and the Escrow Agent has been notified thereof in writing signed by all such persons or entities, or (ii) file an interpleader action in any court of competent jurisdiction, in which counsel event all costs and expenses will be borne by Micrel and the Synergy Representative.
(h) The Escrow Agent may be resign at any time upon thirty (30) days written notice to Micrel and the Synergy Representative. In the event of such notice of resignation, prior to the expiration of such notice, Micrel and the Synergy Representative shall designate a successor escrow agent. Such successor escrow agent shall have accepted such designation and will serve as escrow agent on the same terms and conditions as set forth herein or on such other terms and conditions as are agreeable to Micrel and the Synergy Representative. Upon written notice to the Escrow Agent of such designation, the Escrow Agent shall deliver all relevant funds deposited hereunder to the successor escrow agent, whereupon all the Escrow Agent's own choosingduties and obligations hereunder shall cease and terminate.
(i) Upon termination of this Agreement or the resignation of the Escrow Agent, the Escrow Agent may request, and Micrel and the Synergy Representative shall deliver to the Escrow Agent, a release satisfactory to the Escrow Agent releasing the Escrow Agent from all liability under this Agreement.
(j) The Escrow Agent's fees for its services hereunder shall be as set forth on Exhibit A hereto. In addition to such fees, the Escrow agent shall be reimbursed for the reasonable fees and expenses of its legal counsel and other reasonable out-of-pocket expenses reasonably incurred by it for so long as any portion of the Escrowed Cash is held by the Escrow Agent hereunder. All such fees shall be borne by Micrel and the Synergy Representative. Payment for the first twelve (12) months of service shall be paid to the Escrow Agent upon the establishment of the Escrow by check in the amount of $5,500. In addition, Micrel and Synergy Representative shall pay $5,000 to the Escrow Agent to be held as a cash reserve for future fees ("Cash Reserve"). After the initial twelve (12) months of service, the Escrow Agent shall deduct its monthly fees from the Cash Reserve. In the event the Cash Reserve is exhausted, service shall be billed on a month to month basis by the Escrow Agent to Micrel and the Synergy Representative, and shall not be liable for any mistake paid by Micrel and Synergy Representative upon receipt of fact or error of judgment or for any acts or omissions of any kind unless caused by willful misconduct or gross negligence.
4.4 The Parties agree to indemnify the such monthly xxxx. Escrow Agent shall have a lien or right of set-off on all fund and hold them property held hereunder to secure its rights hereunder to be indemnified and held harmless against any and to be reimbursed for all liabilities incurred by them hereunder, except of its expenses arising out of or in the case where such liabilities result from their own willful misconduct or gross negligenceconnection with this Escrow Agreement.
Appears in 1 contract
Samples: Escrow Agreement (Micrel Inc)
Provisions Concerning the Escrow Agent. 4.1 10.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
10.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 10.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
10.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
10.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
10.6. The Representative, on the one hand, and Parent, on the other hand, shall each upon demand pay to the Escrow Agent fifty percent (50%) of the amount of all reasonable expenses, including the reasonable fees and expenses of counsel, which counsel the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Funds. In the event the Escrow Agent deducts any unpaid fees for which Parent is responsible hereunder from the Escrow Funds, Parent shall promptly deposit into the Escrow Account Parent’s portion of such unpaid fees and in the event the Escrow Agent deducts any unpaid fees for which any of the Securityholders is responsible hereunder from the Escrow Funds, the Representative shall promptly deposit into the Escrow Account such Securityholder’s portion of such unpaid fees.
10.7. The Escrow Agent may resign by giving written notice to Parent and the Representative of such resignation, specifying a date upon which such resignation shall take effect, which shall in no event be earlier than sixty (60) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Funds. Immediately upon receipt of such notice, Parent and the Representative shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to Parent and the Representative and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Funds. In the event that a successor Escrow Agent shall not be liable for so appointed by the date of resignation specified by the Escrow Agent, the Escrow Agent shall have the right to appoint as a successor Escrow Agent any mistake of fact or error of judgment or for national bank, and the parties hereto agree to accept any acts or omissions such successor Escrow Agent appointed by the Escrow Agent.
10.8. In the event of any kind unless caused by willful misconduct dispute between Parent or gross negligence.
4.4 The Parties agree to indemnify the Representative, or between the Escrow Agent and hold them harmless any one or more of the other parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Funds or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should xxxx hereunder, the Escrow Agent may deposit the Escrow Funds with any court described in Section 10.9 of the Merger Agreement pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 10.8 are cumulative of all other rights which it may have by law or otherwise.
10.9. The parties to the Escrow Agreement (other than the Escrow Agent) hereby agree that the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. Notwithstanding the foregoing, Parent and the Representative (jointly and severally) agree that any payment required to be made pursuant to this Section 10.9 shall be paid fifty percent (50%) by Parent and fifty percent (50%) by the Representative. The Escrow Agent may deduct any unpaid amounts from the Escrow Funds. In the event the Escrow Agent deducts any unpaid amounts for which Parent is responsible under this Section 10.9 from the Escrow Funds, Parent shall promptly deposit into the Escrow Account Parent’s portion of such unpaid amounts and in the event the Escrow Agent deducts any unpaid amounts for which the Representative is responsible hereunder from the Escrow Funds, the Representative shall promptly deposit into the Escrow Account the Representative’s portion of such unpaid amounts.
10.10. Parent and the Representative together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, Parent and the Representative shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Funds to such successor Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (Ixia)
Provisions Concerning the Escrow Agent. 4.1 5.1. This Escrow Agent may resign and be discharged from their Agreement sets forth, exclusively, the duties hereunder at any time by giving notice of such resignation to the Parties specifying a date when such resignation shall take effect. The Parties may jointly remove the Escrow Agent as escrow agent by giving notice of such removal to the Escrow Agent and specifying a date when such removal no additional duties or obligations shall take effectbe inferred herefrom or implied hereby.
5.2. Upon such notice, the Parties shall appoint a successor escrow agent, such successor escrow agent to become escrow agent hereunder upon the resignation or removal date specified in the appropriate notice. The Escrow Agent shall continue not be responsible for the validity of any documents or other property delivered to serve until the successor accepts the escrow it pursuant hereto, may act and receives the funds.
4.2 Escrow Agent undertakes to perform such duties as are specifically set forth herein and may rely conclusively rely, and shall be protected in acting or refraining from acting, on upon any written notice, instrument, instrument or signature believed by them it to be genuine and may assume that any person purporting to have been signed give any notice or presented instructions hereunder, believed by the proper party or parties Escrow Agent to be authorized, has been duly authorized so to do sodo.
4.3 5.3. The Escrow Agent shall not be liable for any action error of judgment, or for any act done or step taken or omitted to be taken by it in good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any action taken or omitted to be taken by it in good faith, or for any mistake of fact or law, or for anything which it may in good faith do or refrain from doing in connection herewith, except to the extent that any act or omission constitutes gross negligence or willful misconduct. In no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action.
5.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the advice of counsel such counsel.
5.5. The Escrow Agent shall not be bound by any modification of this Escrow Agreement unless it shall have specifically consented thereto in writing.
5.6. STP1 shall be responsible for and shall pay to the Escrow Agent all reasonable expenses, including the reasonable fees and expenses of counsel, which the Escrow Agent may incur, and its normal fees for all services rendered, in each case in connection with the discharge of its duties, and the exercise or enforcement of the rights of the Parties hereunder. The Escrow Agent may deduct any unpaid fees from the Escrow Funds. In the event the Escrow Agent deducts any unpaid fees for which STP1 is responsible hereunder from the Escrow Funds, STP1 shall promptly deposit into the Escrow Account an amount equal to such deducted amount.
5.7. The Escrow Agent may resign by giving written notice to STP1, Master Tenant, SPI, GREM and HEK Partners specifying a date which such resignation shall take effect, which shall in no event be earlier than ten (which counsel may be 10) days after the giving of Escrow Agent's own choosing)such notice, and shall be discharged from its duties and obligations upon the appointment of a successor Escrow Agent as hereafter provided and the delivery to such successor of the Escrow Funds. Immediately upon receipt of such notice, STP1, Master Tenant, SPI, GREM and HEK Partners shall appoint a successor Escrow Agent who shall be mutually acceptable to them. Any such successor Escrow Agent shall deliver to STP1, Master Tenant, SPI, GREM and HEK Partners and to the resigning Escrow Agent a written instrument accepting such appointment hereunder, and thereupon it shall succeed to all the rights and duties of the Escrow Agent hereunder, and shall be entitled to receive the Escrow Funds. In the event that a successor Escrow Agent shall not be liable for so appointed by the date of resignation specified by the Escrow Agent, the Escrow Agent shall have the right to appoint as a successor Escrow Agent any mistake of fact or error of judgment or for national bank, and the Parties hereto agree to accept any acts or omissions such successor Escrow Agent appointed by the Escrow Agent.
5.8. In the event of any kind unless caused by willful misconduct dispute between STP1, Master Tenant, SPI and GREM and HEK Partners or gross negligence.
4.4 The Parties agree to indemnify between the Escrow Agent and hold them harmless any one or more of the other Parties hereto, with regard to the Escrow Agent or its duties, or any other matter concerning the disposition of the Escrow Funds or in the event that the Escrow Agent, in good faith, is in doubt as to what action it should take hereunder, the Escrow Agent may deposit the Escrow Funds with the Superior Court of California for Sacramento County pending the decision of such court, and the Escrow Agent shall be entitled to refrain from action pending, and rely upon, the decision of such court. The rights of the Escrow Agent under this Section 5.8 are cumulative of all other rights which it may have by law or otherwise.
5.9. The Parties (other than the Escrow Agent) hereby agree that, the Escrow Agent shall be indemnified from and against any and all liabilities incurred by them hereunderloss, except in the case where such liabilities result from their own liability or expense reasonably incurred, without gross negligence, willful misconduct or gross negligencebad faith on its part, arising out of or in connection with the Escrow Agreement, including the expense of defending itself against any claim or liability arising therefrom. Any payment required to be made pursuant to this Section 5.9 shall be paid from the Escrow Fund. The Escrow Agent shall not be required to give any bond or surety or report to any court despite any statute, custom or rule to the contrary. The Escrow Agent may deduct any unpaid amounts from the Escrow Funds.
5.10. STP1, Master Tenant, SPI, GREM and HEK Partners together may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the date upon which such termination shall take effect. In the event of such termination, STP1, Master Tenant, SPI, GREM and HEK Partners shall before the date of such termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall deliver the remaining Escrow Funds to such successor Escrow Agent.
Appears in 1 contract
Samples: Escrow Agreement (Solar Power, Inc.)
