Resignation and Termination of the Escrow Agent The Escrow Agent may resign at any time by giving 30 days’ prior written notice of such resignation to Underwriter and the Company. Upon providing such notice, the Escrow Agent shall have no further obligation hereunder except to hold as depositary the Escrow Funds that it receives until the end of such 30-day period. In such event, the Escrow Agent shall not take any action, other than receiving and depositing Investors checks and wire transfers in accordance with this Agreement, until the Company has designated a banking corporation, trust company, attorney or other person as successor. Upon receipt of such written designation signed by Underwriter and the Company, the Escrow Agent shall promptly deliver the Escrow Funds to such successor and shall thereafter have no further obligations hereunder. If such instructions are not received within 30 days following the effective date of such resignation, then the Escrow Agent may deposit the Escrow Funds held by it pursuant to this Agreement with a clerk of a court of competent jurisdiction pending the appointment of a successor. In either case provided for in this Section, the Escrow Agent shall be relieved of all further obligations and released from all liability thereafter arising with respect to the Escrow Funds.
Indemnification of the Escrow Agent In consideration of the benefits to be derived by Seller from the Split-Off Escrow Agreement, as a third-party beneficiary under the Split-Off Escrow Agreement, Seller shall, from and at all times after the date of the Split-Off Escrow Agreement, indemnify and hold harmless the Escrow Agent and each partner, director, officer, employee, attorney, agent and affiliate of Escrow Agent (collectively, the “Indemnified Parties”), to the fullest extent permitted by law and to the extent provided herein, against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorney’s fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action, or proceeding (including any inquiry or investigation) by any person, including without limitation the parties to the Split-Off Escrow Agreement, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of the Split-Off Escrow Agreement or any transaction contemplated herein, whether or not any such Indemnified Party is a party to any such action or proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted from the gross negligence or willful misconduct of such Indemnified Party. The obligations of the parties under this section shall survive any termination of this Agreement.
TERMS OF THE ESCROW 1.1 The parties hereby agree to have the law firm of Xxxxxxxxxxx Xxxxxx Xxxx & Xxxx, P.C., Greenville, South Carolina act as Escrow Agent whereby the Escrow Agent shall receive the Funds and the Transaction Documents in escrow and distribute the same as set forth in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Preferred Stock Purchase Agreement, of even date herewith between VBYR and Xxxxxx (the “Preferred Stock Purchase Agreement”), the Agreement and Plan of Merger, of even date herewith between CSI and VBYR (the “Merger Agreement”), and any and all documents related thereto, with this Agreement being an exhibit to such Preferred Stock Purchase Agreement (collectively, the “Documents,” and all Documents other than this Agreement, the Preferred Stock Purchase Agreement and the Merger Agreement being collectively referred to herein as the “Transaction Documents.”)
1.2 Upon the execution and delivery of this Agreement by the parties hereto, the parties to the Preferred Stock Purchase Agreement and the Merger Agreement shall execute and deliver such agreements, and this Agreement, the Preferred Stock Purchase Agreement and the Merger Agreement shall not be escrowed under the terms of this Agreement. Prior to the Closing Date, CSI, VBYR and Xxxxxx shall deliver the executed Transaction Documents to the Escrow Agent and Xxxxxx shall deposit the Funds with the Escrow Agent. The Escrow Agent shall thereafter hold the Funds and the Transaction Documents until the earlier of: (i) the date on which CSI, Xxxxxx and VBYR have consummated the Contemplated Transactions; (ii) the termination of any of the Contemplated Transactions prior to consummation; or (iii) February 28, 2005. In the event of the consummation of the Contemplated Transactions, then the Escrow Agent shall promptly release the Funds by wire transfer or check to the Authorized Recipients listed on Exhibit “A” attached hereto in the amounts designated for each of such Authorized Recipients for use by CSI and VBYR to repay the Dividend Note of CSI to the Original Shareholders, to repay the Merger Note portion of the Merger Consideration to be paid by VBYR to the Original Shareholders and to pay certain fees and commissions in connection with the transactions contemplated by the Preferred Stock Purchase Agreement, and the Escrow Agent shall also deliver the Transaction Documents to each of CSI, VBYR and Xxxxxx. In the event the closing of the Contemplated Transactions does not occur before February 28, 2005 or the Contemplated Transactions are terminated by CSI, VBYR and Xxxxxx on or prior to such date, then the Escrow Agent shall immediately return the Funds to Xxxxxx by wire transfer according to instructions received in writing by the Escrow Agent from Xxxxxx, and the Escrow Agent shall destroy the Transaction Documents.
1.3 In connection with the transactions described in Section 1.2, (i) the Escrow Agent shall release the Funds to the Authorized Recipients and Transaction Documents to CSI, VBYR and Xxxxxx upon receipt of a joint written notice from CSI, Xxxxxx and VBYR that all the Contemplated Transactions have been consummated and (ii) the Escrow Agent shall return the Funds to Xxxxxx and destroy the Transaction Documents either (a) upon the receipt of a joint written notice from CSI, VBYR and Xxxxxx that the Contemplated Transactions have been terminated or (b) on March 1, 2005, if the Escrow Agent has not received the notice described in Section 1.3(i) above or the Escrow Agent receives notice of termination of the Contemplated Transactions solely from Xxxxxx.
1.4 Upon the completion by the Escrow Agent of its obligations under Section 1.2, this Agreement shall terminate and the Escrow Agent shall have no further liability hereunder.
1.5 This Agreement may be altered or amended only with the written consent of all of the parties hereto. In the event CSI, VBYR or Xxxxxx attempts to change this Agreement in a manner, which, in the Escrow Agent’s discretion, shall be undesirable, the Escrow Agent may resign as Escrow Agent by notifying CSI, VBYR and Xxxxxx in writing. In the case of the Escrow Agent’s resignation, the only duty of the Escrow Agent, until receipt of a joint written notice from CSI, VBYR and Xxxxxx (the “Transfer Instructions”) that a successor escrow agent has been appointed, shall be to hold and preserve the Funds and the Transaction Documents that are in its possession. Upon receipt by the Escrow Agent of said notice from CSI, VBYR and Xxxxxx of the appointment of a successor escrow agent, the name of a successor escrow account and a direction to transfer the Funds to such successor escrow account to be thereafter held by such successor escrow agent, the Escrow Agent shall promptly thereafter transfer the Funds and deliver the Transaction Documents to said successor escrow agent. Immediately after said transfer of the Funds and delivery of the Transaction Documents to said successor escrow agent, the Escrow Agent shall furnish CSI, VBYR and Xxxxxx with proof of such transfer. The Escrow Agent is authorized to disregard any notices, requests, instructions or demands received by it from CSI, VBYR and Xxxxxx after notice of resignation has been given, except only for the Transfer Instructions.
1.6 The Escrow Agent shall be reimbursed by CSI for any reasonable expenses incurred in the event there is a conflict between the parties and the Escrow Agent shall deem it necessary to retain counsel, upon whose advice the Escrow Agent may rely. The Escrow Agent shall not be liable for any action taken or omitted by the Escrow Agent in good faith and in no event shall the Escrow Agent be liable or responsible except for the Escrow Agent’s own gross negligence or willful misconduct. The Escrow Agent has made no representations or warranties to CSI, VBYR or Xxxxxx in connection with this transaction. The Escrow Agent has no liability hereunder to either party other than to hold the Funds received from Xxxxxx and to deliver the Funds under the terms hereof. CSI, VBYR and Xxxxxx each agrees to indemnify and hold harmless the Escrow Agent from and with respect to any suits, claims, actions or liabilities arising in any way out of the Contemplated Transactions, including the obligation to defend any legal action brought which in any way arises out of or is related to this Agreement, the Preferred Stock Purchase Agreement, the Merger Agreement, and/or the other Documents. The parties each and all acknowledge and recognize that the Escrow Agent has also served and shall continue to serve as the legal counsel to CSI and the parties each and all waive any claim of any conflict of interest as a result thereof.
1.7 The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in good faith, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of such good faith.
1.8 The Escrow Agent is hereby expressly authorized to disregard any and all warnings or orders given by any of the parties hereto or by any other person or corporation, excepting only the written notices described in Section 1.3 and the Transfer Instructions and/or orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, including but not limited to the written notices described in Section 1.3 and the Transfer Instructions, then the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree or orders being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
1.9 The Escrow Agent shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for hereunder.
1.10 If the Escrow Agent reasonably requires other or further documents in connection with this Agreement, the necessary parties hereto shall join in furnishing such documents.
1.11 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the Funds and/or the Transaction Documents held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion (a) to retain the Funds and the Transaction Documents in the Escrow Agent’s possession, without liability to anyone, until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings or (b) to deliver the Funds and the Transaction Documents held by the Escrow Agent hereunder to a state or federal court having competent subject matter jurisdiction and located in the State of South Carolina in accordance with the applicable procedure therefor.
Appointment of the Escrow Agent The Escrow Agent is hereby designated and appointed to act as escrow agent in accordance with the terms and conditions of this Agreement, and the Escrow Agent hereby accepts such designation and appointment.
Disbursement of the Escrow Shares 3.1 The Escrow Agent shall hold the Escrow Shares during the period (the “Escrow Period”) commencing on the date hereof and (i) for 50% of the Escrow Shares, ending on the earlier of (x) six months after the date of the consummation of the Company’s initial business combination (as described in the Registration Statement, hereinafter a “Business Combination”) and (y) the date on which the closing price of the Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after the Company’s initial Business Combination and (ii) for the remaining 50% of the Escrow Shares, ending six months after the date of the consummation of an initial Business Combination. The Company shall promptly provide notice of the consummation of a Business Combination to the Escrow Agent. Upon completion of the Escrow Period, the Escrow Agent shall disburse such amount of each Initial Shareholder’s Escrow Shares (and any applicable share power) to such Initial Shareholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being liquidated at any time during the Escrow Period, then the Escrow Agent shall promptly destroy the certificates representing the Escrow Shares; provided further, however, that if, within six months after the Company consummates an initial Business Combination, the Company (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the shareholders of such entity having the right to exchange their shares of Common Stock for cash, securities or other property, then the Escrow Agent will, upon receipt of a notice executed by the Chairman of the Board, Chief Executive Officer or other authorized officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated or such conditions have been achieved, as applicable, release the Escrow Shares to the Initial Shareholders. The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Shares in accordance with this Section 3.1.
3.2 Notwithstanding Section 3.1, if the Underwriters do not exercise their over-allotment option to purchase an additional 750,000 Units of the Company in full within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Initial Shareholders agree that the Escrow Agent shall return to the Company for cancellation, at no cost, the number of Escrow Shares held by the Initial Shareholders listed on Exhibit B determined by multiplying (a) the product of (i) 187,500 multiplied by (ii) a fraction, (x) the numerator of which is the number of Escrow Shares held by each such holder, and (y) the denominator of which is the total number of Escrow Shares, by (b) a fraction, (i) the numerator of which is 750,000 minus the number of shares of Common Stock purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 750,000. The Company shall promptly provide notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment option and the number of Units, if any, purchased by the Underwriters in connection with their exercise thereof.
Termination of the Exchange Fund Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of the Certificates who have not theretofore complied with this Article II shall thereafter look only to Parent for, and Parent shall remain liable for, payment of their claim for the Merger Consideration.
Duties of the Escrow Agent The Escrow Agent shall have no duties or responsibilities other than those expressly set forth in this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent is not a party to, or bound by, any other agreement among the other parties hereto with respect to the subject matter hereof, and the Escrow Agent’s duties shall be determined solely by reference to this Agreement. The Escrow Agent shall have no duty to enforce any obligation of any person, other than as provided herein. The Escrow Agent shall be under no liability to anyone by reason of any failure on the part of any party hereto or any maker, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document.
Disbursements from the Escrow Account a. At such time as Escrow Agent has collected and deposited instruments of payment in the total amount of the Advance and has received such Common Stock via D.W.A.C from the Company which are to be issued to the Investor pursuant to the Standby Equity Distribution Agreement, the Escrow Agent shall notify the Company and the Investor. The Escrow Agent will continue to hold such funds until the Investor and Company execute and deliver a Joint Written Direction directing the Escrow Agent to disburse the Escrow Funds pursuant to Joint Written Direction at which time the Escrow Agent shall wire the Escrow Funds to the Company. In disbursing such funds, Escrow Agent is authorized to rely upon such Joint Written Direction from Company and may accept any signatory from the Company listed on the signature page to this Agreement and any signature from the Investor that Escrow Agent already has on file. Simultaneous with delivery of the executed Joint Written Direction to the Escrow Agent the Investor and Company shall execute and deliver a Common Stock Joint Written Direction to the Escrow Agent directing the Escrow Agent to release via D.W.A.C to the Investor the shares of the Company's Common Stock. In releasing such shares of Common Stock the Escrow Agent is authorized to rely upon such Common Stock Joint Written Direction from Company and may accept any signatory from the Company listed on the signature page to this Agreement and any signature from the Escrow Agent has on file. In the event the Escrow Agent does not receive the amount of the Advance from the Investor or the shares of Common Stock to be purchased by the Investor from the Company, the Escrow Agent shall notify the Company and the Investor.
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION 9.1. The Effective Date of this Settlement Agreement shall not occur unless and until each and every one of the following events occurs:
(a) This Agreement has been signed by the Parties and Class Counsel, and the individual settlement agreements with Xxxxxxxxx Xxxxx, the heirs of Xxxxx Xxxxx, Xxxxxx Xxxxxxxxx, and Xxxxxx Xxxxxxxx-Xxx have been fully executed;
(b) The Court has entered an order granting Preliminary Approval of the Agreement;
(c) The Court has entered a Final Approval Order finally approving the Agreement, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable, following Notice and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure; and
(d) In the event that the Court enters an approval order and final judgment in a form other than that provided above (“Alternative Approval Order”) to which the Parties have consented, that Alternative Approval Order has become final and unappealable.
9.2. If some or all of the conditions specified in Paragraph 9.1 are not met, or in the event that this Settlement Agreement is not approved by the Court, or the settlement set forth in this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Illinois Fee Award and Ohio Fee Award to Class Counsel set forth above or the incentive award to the Class Representatives, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3. If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 6.2, 9.1, or 9.2 above, the Parties shall be restored to their respective positions in the Action as of the date of the signing of this Agreement. In such event, any Final Approval Order or other order entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and the Parties shall be returned to the status quo ante with respect to the Actions as if this Agreement had never been entered into, including Defendant’s right to seek to compel arbitration as to the Plaintiffs named in the Second Amended Complaint.
9.4. In the event the Settlement is terminated or fails to become effective for any reason, the Illinois Settlement Fund and Ohio Settlement Fund, together with any earnings thereon at the same rate as earned, less any taxes paid or due, less Settlement Administrative Expenses actually incurred and paid or payable from the Settlement Fund, shall be returned to Defendant or its Insurer within thirty (30) calendar days after written notification of such event in accordance with instructions provided by Defendant’s Counsel to the Settlement Administrator.
Disbursement of the Escrow Securities 3.1 The Escrow Agent shall hold the Insider Shares during the period (the “Insider Shares Escrow Period”) commencing on the date hereof and (i) for 50% of the Insider Shares, ending on the earlier of (x) six months after the date of the consummation of the Company’s initial business combination (as described in the Registration Statement, hereinafter a “Business Combination”) and (y) the date on which the closing price of the Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after the Company’s initial Business Combination and (ii) for the remaining 50% of the Insider Shares, ending six months after the date of the consummation of a Business Combination. The Insider Shares shall be released upon notice to the Escrow Agent by any Initial Securityholder or the Company that the foregoing requirements have been met. The Company shall promptly provide written notice of the consummation of a Business Combination to the Escrow Agent. Upon completion of the Insider Shares Escrow Period, the Escrow Agent shall disburse such amount of each Initial Securityholder’s Insider Shares to such Initial Securityholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being liquidated at any time during the Insider Shares Escrow Period, then the Escrow Agent shall promptly destroy the certificates representing the Insider Shares; provided further, however, that if, subsequent to the Company’s Business Combination, the Company (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the shareholders of such entity having the right to exchange their shares of Common Stock for cash, securities or other property, then the Escrow Agent will, upon receipt of a written notice executed by the Chairman of the Board, Chief Executive Officer or other authorized officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated or such conditions have been achieved, as applicable, release the Insider Shares to the Initial Securityholders. The Escrow Agent shall have no further duties hereunder after the disbursement or cancellation of the Insider Shares in accordance with this Section 3.
3.2 Notwithstanding Section 3.1, if the Underwriters do not exercise their over-allotment option to purchase an additional 1,500,000 Units of the Company in full within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Initial Securityholders agree that the Escrow Agent shall return to the Company for cancellation, at no cost, the number of Insider Shares held by each such holder determined by multiplying (a) the product of (i) 375,000 multiplied by (ii) a fraction, (x) the numerator of which is the number of Insider Shares held by each such holder, and (y) the denominator of which is the total number of Insider Shares, by (b) a fraction, (i) the numerator of which is 1,500,000 minus the number of shares of Common Stock purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 1,500,000. The Company shall promptly provide written notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment option and the number of Units, if any, purchased by the Underwriters in connection with their exercise thereof. The Initial Securityholders hereby irrevocably constitute and appoint Escrow Agent to transfer the said Insider Shares on the books of the Company with full power of substitution in the premises.
