The Escrow Agent. 5.1 The parties acknowledge and agree that: (a) the duties and obligations of the Escrow Agent shall be determined solely by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement; (b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct; (c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent; (d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder; (e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any); (f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement; (g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands; (h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement; (i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and (j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shares.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) 4.1 In exercising the rights, duties and obligations of the Escrow Agent shall be determined solely prescribed or confirmed by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and the Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Shares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of loss of the Shares and Warrants except the duty to exercise such care in the safekeeping thereof as it would exercise if the Shares and Warrants belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall have be sufficient if any writing purporting to be such a notice, demand or protest is served upon the right Escrow Agent in any manner sufficient to consult with bring it to its attention.
4.7 In the event that the Shares and obtain advice from legal counsel appointed Warrants are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, who may but need the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without D/BIP/644415.2 jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be legal counsel for liable to any of the parties hereto or to this Agreementany other person, and firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent shall incur no responsibility is authorized and shall directed to disregard in its sole discretion any and all notices and warnings which may be fully protected given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in acting in good faith in accordance with any opinion or instruction case of such counsel; compliance, it shall not be liable by reason thereof to any of the Corporation shall pay the reasonable feesparties hereto or to any other person, expenses and disbursements of firm, association or corporation, even if thereafter any such counsel so retained by the Escrow Agent;order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
(d) 4.9 If the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice receives any written instructions contrary to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided instructions contained in this Agreement, the Escrow Agent is may continue to deliver to such successor all certificates representing hold the Escrowed Shares then in its possession upon payment by and Warrants until the Corporation lawful determination of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement issue between the parties hereto.
4.10 If protest is made to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court otherwise.
4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days’ written notice thereof to each of competent jurisdiction, which direction may include a request for an interpleader order the Company or the Investor. The Company and the Corporation and the Shareholder (as the case Investor may be) shall indemnify terminate the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) by giving to the Escrow Agent shall a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be entitled effective and the Escrow Agent will cease to represent itself in connection with any legal actions taken in connection with be bound by this Agreement; and
Agreement on the date that is ten (j10) upon days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent’s delivery , the Company and the Investor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrowed SharesEscrow Agent.
4.12 Notwithstanding anything herein to the contrary, the Escrow Agent shall be automatically may act upon any written instructions given by the Company and immediately released from all obligations under this Agreement the Investor jointly.
4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Company and the Investor or between any other party persons or between any of them with respect to this Agreement and to or any other person matters arising thereto, or with respect to the Escrowed SharesShares and Warrants, other than obligations existing as of the date of Escrow Agent may in its sole discretion deliver and interplead the Shares and Warrants into court and such delivery of and interpleading will be an effective discharge to the Escrowed SharesEscrow Agent.
Appears in 1 contract
The Escrow Agent. 5.1 6.1. The parties acknowledge Escrow Agent shall promptly dispose of all or any part of the Escrow Amount as directed by written instructions signed by the Depositors, subject to the other provisions of this Section 6 in its entirety.
6.2. In the administration of the escrow account hereunder, the Escrow Agent may execute any of its powers or perform any of its duties hereunder directly or through agents or attorneys and agree that:may consult with counsel, accountants and other professionals to be selected in good faith and retained by it.
(a) 6.3. The Escrow Agent shall not be liable for any act or failure to act under this Agreement, or in connection herewith, including any negligent act of the duties and obligations of Escrow Agent, except that the Escrow Agent shall be determined solely liable for its own gross negligence or willful misconduct. The Escrow Agent shall at its option be entitled to refuse to comply with any disagreeing or adverse claims or demands during the continuance of such disagreement and may refrain from delivering any item affected thereby without becoming liable to any Depositor or to any other person due to its failure to comply with such demands until (a) all rights of the adverse claimants (including any third parties making an adverse claim) have been finally adjudicated by a court having jurisdiction of the parties and the items affected thereby, after which time the Escrow Agent shall be entitled to act in conformity with such adjudication; or (b) all differences shall have been adjusted by agreement and the Escrow Agent shall have been directed in writing signed by the provisions Depositors and all other persons making adverse claims or demands, at which time the Escrow Agent shall be protected in acting in compliance therewith. The rights of the Escrow Agent under this Section 6 are cumulative of all other rights it may have by law or otherwise. Escrow Agreement
6.4. The Escrow Agent shall not be liable for, and each of SCC and the Sellers shall jointly and severally indemnify the Escrow Agent for and hold it harmless against, any losses, liability, damages, expense or claims (including reasonable out-of-pocket expenses and in-house or outside counsel fees) arising out of any action by the Escrow Agent taken or omitted in good faith hereunder or upon the advice of counsel, accountants or other professionals engaged by the Escrow Agent, or arising from any claims, controversies or legal proceedings in connection with this Agreement. It is the express intent of the parties that the indemnity provided for in this Escrow Agreement is to indemnify the Escrow Agent from the consequences of its own negligence (but not the Escrow Agent’s gross negligence or willful misconduct) whether that negligence is the sole or concurring cause of the loss, liability, damage or cost. The obligations of the Depositors to the Escrow Agent hereunder shall be performable at the office of the Escrow Agent in Dallas, Texas, and shall survive the termination of this Agreement andfor any reason whatsoever. It is the intention of the parties hereto that the Escrow Agent shall never be required to use or advance its own funds or otherwise incur personal financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder.
6.5. Notwithstanding anything to the contrary in this Agreement, accordinglyin no event shall the Escrow Agent be liable for special, indirect or consequential damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action in which such loss or damages are sought. The Escrow Agent may decline to act and shall not be liable for failure to act if it is in doubt as to its duties under this Agreement.
6.6. The Escrow Agent may act upon any instrument or signature reasonably believed by it to be genuine and may assume that any person reasonably believed by the Escrow Agent to be authorized to give any notice or instruction hereunder has been duly so authorized, and the Escrow Agent shall not incur any liability for following the instructions therein contained or expressly provided for herein.
6.7. The Escrow Agent’s duties shall be determined only with reference to this Agreement and applicable laws, and the Escrow Agent is not charged with knowledge of, or any duties or responsibilities in connection with, any other document or agreement, including the Purchase Agreement, except for the defined terms therein that are used in this Agreement.
6.8. The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the Depositors pursuant to Section 8, at least thirty days prior to the date specified for such resignation to take effect. In such event, the Depositors shall appoint a successor escrow agent within the thirty-day period, but if they fail to do so, the Escrow Agent may appoint a successor escrow agent, which shall in no event be any of the Depositors. Upon the effective date of its resignation, the Escrow Agent shall not deliver the Escrow Amount then held by it hereunder to such successor escrow agent against a written receipt therefor or as otherwise shall be responsible except for designated in writing by the performance of such duties and obligations as Depositors.
6.9. In the event that the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for is at any error in judgement time confronted with inconsistent or for any act done conflicting claims or step taken demands by one or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out more of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this AgreementDepositors, the Escrow Agent shall have the right to consult with interplead those Parties in a court of competent jurisdiction situated in the State of Michigan and obtain advice from legal counsel appointed by to request that such court determine the Escrow Agent, who may but need not be legal counsel for any respective rights and obligations of the parties Parties with respect to this AgreementAgreement and upon doing so, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with released from any opinion obligations or instruction liability to any of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements Depositors as a consequence of any such counsel so retained by claims or demands. Escrow Agreement
6.10. Nothing in this Agreement shall be deemed to impose upon the Escrow Agent;Agent any duty to qualify to do business or to act as a fiduciary or otherwise in any jurisdiction other than the State of Texas. The Escrow Agent shall not be responsible for, and shall not be under a duty to examine, inquire into, or pass upon, the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
(d) 6.11. Any corporation into which the Escrow Agent may resign its trust and be discharged merged or converted or with which it may be consolidated, or any corporation resulting from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice any merger, conversion or consolidation to the Corporation and the Shareholder;
(e) if which the Escrow Agent resigns as escrow agent shall be a party, or is removed in accordance with this Agreement, the Corporation shall have the right and obligation any corporation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume which substantially all of the obligations and responsibilities and corporate trust business of the Escrow Agent may be transferred, shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement without further act by any of the Parties; and provided, further, that this Agreement is entered into with Comerica Bank, a Michigan banking corporation (andfor purposes of this Section 6.11, if the "Merged Bank"). The Merged Bank has been or will be merged with and into Comerica Bank, a successor escrow agent is appointed as provided Texas banking association (for purposes of this Section 6.11, the "Surviving Bank"). The undersigned hereby acknowledge and agree that any reference in this AgreementAgreement to Comerica Bank, a Michigan banking corporation, shall mean Comerica Bank, a Texas banking association, as successor by merger to the Merged Bank.
6.12. The Escrow Agent shall have no obligation to prepare any applicable tax return (local state or federal) in connection with the Escrow Agent is Amount except as to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shares's own income.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge To induce the Escrow Agent to act hereunder, it is further agreed by NYTEX, Xxxxx Xxxxxxx and agree Seller Representative that:
(a) The Escrow Agent shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested Escrowed Property held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other Parties hereto except this Agreement.
(c) The Escrow Agent shall have only those duties as are specifically provided herein which shall be deemed purely ministerial in nature, and shall under no circumstances be deemed a fiduciary for any of the Parties to this Agreement. The Escrow Agent will never be required to advance its own funds or incur personal financial liability in performing its duties under this Agreement. The Escrow Agent shall have the right to perform any of its duties hereunder through agents, attorneys, custodians or nominees. This Agreement sets forth all matters pertinent to the Escrow Account contemplated hereunder, and no additional obligations of the Escrow Agent shall be determined solely by inferred from the provisions terms of this Agreement andor any other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, accordinglyDIRECTLY OR INDIRECTLY, FOR ANY DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, INCLUDING ITS OWN NEGLIGENCE, BUT EXCLUDING ITS OWN BAD FAITH, GROSS NEGLIGENCE AND WILLFUL MALFEASANCE. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANY PARTY FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOSS OF BUSINESS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION. 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 hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Escrow Agent.
(d) THE ESCROW AGENT IS HEREBY SEVERALLY, AND NOT JOINTLY, INDEMNIFIED AND HELD HARMLESS BY NYTEX, XXXXX XXXXXXX AND SELLER REPRESENTATIVE FROM ALL LOSSES, LIABILITIES, COSTS AND EXPENSES, INCLUDING ATTORNEY FEES AND EXPENSES, WHICH MAY BE INCURRED BY IT AS A RESULT OF ITS ACCEPTANCE OF THE ESCROW ACCOUNT OR ARISING FROM THE PERFORMANCE OF ITS DUTIES HEREUNDER, UNLESS SUCH LOSSES, LIABILITIES, COSTS AND EXPENSES RESULTED FROM THE ESCROW AGENT’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MALFEASANCE. SUCH INDEMNIFICATION SHALL SURVIVE THE ESCROW AGENT’S RESIGNATION OR REMOVAL, OR THE TERMINATION OF THIS AGREEMENT.
(e) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may 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 to do so.
(f) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be responsible except liable for any action taken or omitted in good faith in accordance with such advice.
(g) The Escrow Agent does not have any interest in the performance Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of such duties and obligations as income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent has undertaken in shall be responsible for income reporting only with respect to income earned on investment of the Escrowed Property and is not responsible for any other reporting. This Section 5(g) shall survive notwithstanding any termination of this Agreement;Agreement or the resignation or removal of the Escrow Agent.
(bh) 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.
(i) The Escrow Agent shall not be responsible called upon to advise any Party as to the wisdom in selling or retaining or taking or refraining from taking any action with respect to any securities or other property deposited hereunder.
(j) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other Parties hereto in writing or to any court of competent jurisdiction. The resignation of the Escrow Agent will take effect on the date (the “Resignation Date”) which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to each of NYTEX, Xxxxx Xxxxxxx and Seller Representative on the appointment of such successor escrow agent. If at the Resignation Date the Escrow Agent has not received a designation of a successor escrow agent, the Escrow Agent’s sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other Parties hereto.
(k) The Escrow Agent shall have no responsibility for the contents of any error writing of any third party contemplated herein as a means to resolve disputes and may rely in judgement good faith without any liability upon the contents thereof.
(l) In the event of any disagreement between NYTEX, on the one hand, and Seller Representative and Xxxxx Xxxxxxx, on the other hand, resulting in adverse claims or for any act done demands being made in connection with the Escrowed Property, or step taken or omitted to be taken by in the event that the Escrow Agent in good faith or for any mistake, is in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question doubt as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreementwhat action it should take hereunder, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon retain the Escrowed Property until the Escrow Agent’s Agent shall have received (i) a Final Determination (as defined below) directing delivery of the Escrowed SharesProperty or (ii) a written agreement executed by each of NYTEX, Xxxxx Xxxxxxx and Seller Representative directing delivery of the Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed Property in accordance with such Final Determination or agreement. A “Final Determination” shall mean a final, non-appealable judgment of a court of competent jurisdiction and shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect accompanied by an opinion of counsel to the Escrowed Shareseffect that such judgment is a final, other than obligations existing as non-appealable judgment of the date a court of competent jurisdiction. The Escrow Agent shall act on such delivery of the Escrowed SharesFinal Determination or agreement without further question.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge reasonable fees and agree that:expenses of the Escrow ---------------- Agent in connection with its execution and performance of this Escrow Agreement as set forth on Exhibit B hereto shall be borne by Premiere and the Stockholders --------- equally. The Escrow Agent shall be entitled to such rights and shall perform such duties of the Escrow Agent as set forth herein, including but not limited to the following (collectively, the "Duties"):
(a) the duties and obligations of the The Escrow Agent shall be determined solely by the provisions of this Agreement and, accordingly, hold and safeguard the Escrow Agent shall not be responsible except for the performance of such duties and obligations as during the Escrow Agent has undertaken in this Agreement;
(b) the Period, shall treat such Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as an escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it fund in accordance with the terms of this Escrow Agreement and not as the property of Premiere, and shall hold and dispose of the Escrow only in accordance with the terms of this Escrow Agreement;.
(gb) if there is The Escrow Agent shall distribute to the Stockholders all material relating to a vote of holders of Premiere Common Stock that the Escrow Agent receives from the Premiere or any disagreement between third party, and the parties Stockholders shall, in such Stockholder's sole discretion, vote such shares and execute such documents as may be necessary to permit such shares to be voted by the Stockholders in accordance with their respective beneficial interests. The Escrow Agent shall have no right to vote the Escrow Shares, except to the extent so directed to do so by the beneficial owner of the respective shares.
(c) If at any time following the date of execution of this Agreement resulting in adverse claims or demands with respect and prior to the Escrowed Sharesexpiration of the Escrow Period all claims arising out of or related to the matters set forth in Section 5.11(c) of the VTE Disclosure Memorandum shall have been resolved to Premiere's satisfaction and all claims for Losses in respect thereof shall have been distributed to Premiere in accordance with Section 3, then the Escrow Agent shall be entitled, at its option, distribute to refuse to comply with any claims or demands on it with respect each of the Stockholders the number of Escrow Shares (rounded up to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect nearest whole number) equal to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself sum of (A) $3,000,000 multiplied by such Stockholder's pro rata interest in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, less (B) the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person Distributed Value with respect to claims for Losses asserted by Premiere prior to the Escrowed Shares, other than obligations existing as of event giving rise to the date of rights under this Section 5(d) multiplied by such delivery of the Escrowed Shares.Stockholder's pro rata interest in the
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) 4.1 In exercising the rights, duties and obligations of the Escrow Agent shall be determined solely prescribed or confirmed by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and the Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Shares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of loss of the Shares and Warrants except the duty to exercise such care in the safekeeping thereof as it would exercise if the Shares and Warrants belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall have be sufficient if any writing purporting to be such a notice, demand or protest is served upon the right Escrow Agent in any manner sufficient to consult with bring it to its attention.
4.7 In the event that the Shares and obtain advice from legal counsel appointed Warrants are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, who may but need the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be legal counsel for liable to any of the parties hereto or to this Agreementany other person, and firm or corporation by reason of such D/BIP/673027.1 compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent shall incur no responsibility is authorized and shall directed to disregard in its sole discretion any and all notices and warnings which may be fully protected given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in acting in good faith in accordance with any opinion or instruction case of such counsel; compliance, it shall not be liable by reason thereof to any of the Corporation shall pay the reasonable feesparties hereto or to any other person, expenses and disbursements of firm, association or corporation, even if thereafter any such counsel so retained by the Escrow Agent;order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
(d) 4.9 If the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice receives any written instructions contrary to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided instructions contained in this Agreement, the Escrow Agent is may continue to deliver to such successor all certificates representing hold the Escrowed Shares then in its possession upon payment by and Warrants until the Corporation lawful determination of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement issue between the parties hereto.
4.10 If protest is made to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court otherwise.
4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days’ written notice thereof to each of competent jurisdiction, which direction may include a request for an interpleader order the Company or the Investor. The Company and the Corporation and the Shareholder (as the case Investor may be) shall indemnify terminate the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) by giving to the Escrow Agent shall a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be entitled effective and the Escrow Agent will cease to represent itself in connection with any legal actions taken in connection with be bound by this Agreement; and
Agreement on the date that is ten (j10) upon days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent’s delivery , the Company and the Investor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrowed SharesEscrow Agent.
4.12 Notwithstanding anything herein to the contrary, the Escrow Agent shall be automatically may act upon any written instructions given by the Company and immediately released from all obligations under this Agreement the Investor jointly.
4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Company and the Investor or between any other party persons or between any of them with respect to this Agreement and to or any other person matters arising thereto, or with respect to the Escrowed SharesShares and Warrants, other than obligations existing as of the date of Escrow Agent may in its sole discretion deliver and interplead the Shares and Warrants into court and such delivery of and interpleading will be an effective discharge to the Escrowed SharesEscrow Agent.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) The Escrow Agent shall not receive any fees for its services but shall be reimbursed for all reasonable expenses, disbursements, and advances incurred or made by the Escrow Agent in performance of its duties hereunder, which compensation and obligations expenses shall be paid out of the Escrow Fund.
(b) The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving written notice of such resignation to the Seller and the Buyer specifying a date (not less than thirty (30) days after giving of such notice) when such resignation shall take effect. Upon such notice, the Buyer and the Seller shall appoint a new Escrow Agent who shall replace the resigning Escrow Agent hereunder upon the resignation date specified in such notice. If the Buyer and the Seller are unable to agree upon a successor escrow agent within thirty (30) days after such notice, the Escrow Agent shall be determined solely entitled to appoint its successor. The Seller and the Buyer shall have the right at any time upon their mutual consent to substitute a new Escrow Agent by giving notice thereof to the Escrow Agent then acting.
(c) The Escrow Agent shall have no duties or responsibilities whatsoever with respect to the Escrow Fund except 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, request, consent, certificate, document, letter, telegram, order, resolution or signature believed by the provisions Escrow Agent to be genuine and to have been signed or presented by the proper party or parties duly authorized to do so. The Escrow Agent shall have no responsibility for the contents of this Agreement and, accordingly, any such writing contemplated herein and may rely without any liability upon the contents thereof.
(d) The Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible liable for any error action taken or omitted by it in judgement good faith and believed by it to be authorized hereby or within the rights or powers conferred upon it hereunder, nor for any act done or step action taken or omitted to be taken by the Escrow Agent it in good faith or for any mistake, in fact or lawfaith, or for anything if taken or omitted to be taken in accordance with advice of counsel (which the Escrow Agent counsel may do or refrain from doing in connection with this Agreement except arising out be of the Escrow Agent’s 's own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreementchoosing), the Escrow Agent and shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel liable for any mistake of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with fact or error of judgment or for any opinion acts or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements omissions of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign kind except for its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;own fraud, willful misconduct or gross negligence.
(e) if Each of the Seller and the Buyer and their successors and assigns agree to indemnify the Escrow Agent resigns and hold it harmless against any and all damages, losses, liabilities or expenses (including reasonable attorneys' fees and expenses) incurred by it hereunder as escrow agent or is removed in accordance with this Agreementa consequence of such party's action, and the Corporation shall have the right and obligation parties agree jointly to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of indemnify the Escrow Agent under this Agreement and hold it harmless against any and all damages, losses, liabilities or expenses (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding including reasonable attorneys' fees and expenses, if any);
(f) the Escrow Agent shall incurred by it hereunder that are not be required to make any determination or decision with respect to the validity a consequence of any claim made by any party party's action, except in either case for damages, losses, liabilities or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated expenses incurred by the Escrow Agent under this Agreementresulting from its own fraud, the Escrow Agent may, at its option, willful misconduct or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Sharesgross negligence.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge 6.8.1 shall not be required or under any liability or obligation to take any legal action under this Escrow Agreement or to require that the Companies comply with any provision of this Escrow Agreement;
6.8.2 shall not be required or under any liability or obligation to monitor or enquire as to the performance of the Companies’ obligations under this Escrow Agreement or the Share Exchange Agreement and agree that:shall be entitled to assume without enquiry that each such Company is duly performing and observing all its respective obligations;
(a) 6.8.3 shall not be liable for non-delivery of the PPRW Deliveries, LUX Deliveries or CYP Deliveries, or for the failure of any person to make any payment of funds;
6.8.4 shall not be bound to attempt to enforce delivery of the PPRW Deliveries, LUX Deliveries or CYP Deliveries;
6.8.5 shall not be regarded or treated for any purpose as having any notice or knowledge of any of the provisions of any arrangements relevant to the transactions contemplated or referred to in this Escrow Agreement which are not expressly set out in this Escrow Agreement, and, except as provided in Section 7.4 below, shall be entitled to have regard only to the express terms of this Escrow Agreement in the discharge of its duties under this Escrow Agreement and obligations the exercise of any of its rights under this Escrow Agreement;
6.8.6 shall have no obligation to ensure that the terms of this Escrow Agreement are consistent with the terms of the Share Exchange Agreement;
6.8.7 may, in relation to this Escrow Agreement, act on the opinion or advice of, or any information obtained from, any lawyer or other professional person whether obtained by the Escrow Agent shall be determined solely by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties or any Company and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement loss occasioned by so acting (whether or for not the advice, opinion or information is accurate or authentic or contains some error), and any act done such advice, opinion or step taken information may be sent to or omitted to be taken obtained by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which by such means as the Escrow Agent thinks fit;
6.8.8 may do or refrain from doing in connection anything which would or might be contrary to any law of any jurisdiction or any directive or regulation of any agency or any state or supranational body and may do anything which is necessary to comply with this Agreement except arising out of the Escrow Agent’s own negligence any such law, directive or wilful misconductregulation;
(c) if there is any question as to any 6.8.9 may refrain from doing anything in the performance of the provisions of this Agreement or the Escrow Agent’s its duties under this Agreement, the Escrow Agent shall have the right Agreement which would or might otherwise render it liable to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties person or require it to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion financial liability or instruction require it to use or risk its own funds if it believes that reimbursement of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any funds or adequate indemnity against such counsel so retained by the Escrow Agentrisk is not assured;
(d) 6.8.10 shall promptly seek clarification from the Escrow Agent may resign Companies in the event that it believes its trust and be discharged from all duties and obligations correct course of action under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Escrow Agreement and the documents tendered to it in accordance with the terms of this Agreement;is unclear; and
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent 6.8.11 shall not be liable or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears deemed to be in disagreement about the interpretation default for any failure or delay in performance of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent any duty under this AgreementEscrow Agreement arising in whole or in part from or caused in whole or in part by circumstances beyond its direct and reasonable control including, the Escrow Agent maywithout limitation, at its optionacts of God, partial or complete failure of electrical power or computer services or communication services, acts of civil or military authority, sabotage, terrorism, war, civil disturbance or riot, strike or other industrial dispute, national emergency, flood, earthquake, fire or other catastrophe, or shall by direction of the Corporation governmental, judicial or the Shareholderregulatory order, deposit the Escrowed Shares rule, regulation, judgment or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Sharesact.
Appears in 1 contract
Samples: Escrow Agreement (Premier Power Renewable Energy, Inc.)
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) 4.1 In exercising the rights, duties and obligations of the Escrow Agent shall be determined solely prescribed or confirmed by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Company and the Investor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Shares and Warrants, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of loss of the Shares and Warrants except the duty to exercise such care in the safekeeping thereof as it would exercise if the Shares and Warrants belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Shares and Warrants as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall have be sufficient if any writing purporting to be such a notice, demand or protest is served upon the right Escrow Agent in any manner sufficient to consult with bring it to its attention.
4.7 In the event that the Shares and obtain advice from legal counsel appointed Warrants are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, who may but need the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be legal counsel for liable to any of the parties hereto or to this Agreementany other person, and firm or corporation by reason of such D/BIP/676666.1 compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent shall incur no responsibility is authorized and shall directed to disregard in its sole discretion any and all notices and warnings which may be fully protected given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in acting in good faith in accordance with any opinion or instruction case of such counsel; compliance, it shall not be liable by reason thereof to any of the Corporation shall pay the reasonable feesparties hereto or to any other person, expenses and disbursements of firm, association or corporation, even if thereafter any such counsel so retained by the Escrow Agent;order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
(d) 4.9 If the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice receives any written instructions contrary to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided instructions contained in this Agreement, the Escrow Agent is may continue to deliver to such successor all certificates representing hold the Escrowed Shares then in its possession upon payment by and Warrants until the Corporation lawful determination of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement issue between the parties hereto.
4.10 If protest is made to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall may continue to hold the Shares and Warrants until the right to the Shares and Warrants is legally determined by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court otherwise.
4.11 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days’ written notice thereof to each of competent jurisdiction, which direction may include a request for an interpleader order the Company or the Investor. The Company and the Corporation and the Shareholder (as the case Investor may be) shall indemnify terminate the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) by giving to the Escrow Agent shall a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be entitled effective and the Escrow Agent will cease to represent itself in connection with any legal actions taken in connection with be bound by this Agreement; and
Agreement on the date that is ten (j10) upon days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent’s delivery , the Company and the Investor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrowed SharesEscrow Agent.
4.12 Notwithstanding anything herein to the contrary, the Escrow Agent shall be automatically may act upon any written instructions given by the Company and immediately released from all obligations under this Agreement the Investor jointly.
4.13 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Company and the Investor or between any other party persons or between any of them with respect to this Agreement and to or any other person matters arising thereto, or with respect to the Escrowed SharesShares and Warrants, other than obligations existing as of the date of Escrow Agent may in its sole discretion deliver and interplead the Shares and Warrants into court and such delivery of and interpleading will be an effective discharge to the Escrowed SharesEscrow Agent.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) The Escrow Agent undertakes to perform only such duties as are expressly set forth herein.
(b) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the duties proper party or parties.
(c) The Escrow Agent shall not be liable for any action taken by it in good faith and obligations reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(d) In the event that the Escrow Agent shall be determined solely by the provisions of this Agreement anduncertain as to its duties or rights hereunder or shall receive instructions, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for claims or demands from any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistakeparty hereto which, in fact or lawits opinion, or for anything which the Escrow Agent may do or refrain from doing in connection conflict with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and it shall be entitled to enjoy refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the benefits and rights other parties hereto or by a final order or judgment of a court of competent jurisdiction.
(f) This Escrow Agreement expressly sets forth all the duties of the Escrow Agent under with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of against the Escrow Agent’s outstanding fees and expenses, if any);
(f) the . The Escrow Agent shall not be required to make any determination or decision with respect to bound by the validity provisions of any claim made by any party or agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to have knowledge of any denial thereof but shall be entitled to rely conclusively on nor responsibility under the terms of this Agreement and the documents tendered Merger Agreement. The Escrow Agent shall be under no duty to it in accordance with inquire into or investigate the terms validity, accuracy or content of this Agreement;any such document.
(g) if there is any disagreement between Hubbxxx xxx the parties Shareholder Representative (on behalf of the Shareholders) hereby agree, jointly and severally, to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, indemnify and hold harmless the Escrow Agent shall be entitledagainst any and all costs, at its optionlosses, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continueclaims, damages, liabilities, expenses, including reasonable costs of investigation, court costs, and in so refusingattorneys' fees and disbursements, which may be imposed upon the Escrow Agent may elect to make no delivery in connection with its acceptance of appointment as Escrow Agent hereunder, including any litigation arising from this Agreement or involving the subject matter hereof, except in the case of the Escrowed SharesEscrow Agent's own willful default or gross negligence; 50% of any such amount shall be payable by Hubbxxx xxx 50% shall be payable by the Shareholder Representative on behalf of the Shareholders. Anything in so doingthis 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 whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action; provided, however, that this sentence shall not be apply in the case of gross negligence or become liable in any way to bad faith on the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations part of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the performance of its duties as Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shares.
Appears in 1 contract
The Escrow Agent. 5.1 The parties acknowledge To induce the Escrow Agent to act hereunder, it is further agreed by Buyer and agree Sellers that:
(a) 11.1 The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested Escrowed Property held hereunder shall not earn or accrue interest.
11.2 This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other Parties hereto except this Agreement.
11.3 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 gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, Buyer and Sellers shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with 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 hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 11.3 shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
11.4 The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, 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 or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may 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 to do so.
11.5 The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
11.6 The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. It is understood that the Escrow Agent shall be determined solely by responsible for income reporting only with respect to income earned on investment of the provisions Escrowed Property and is not responsible for any other reporting. This Section 11.6 shall survive notwithstanding any termination of this Agreement andor the resignation of the Escrow Agent.
11.7 The Escrow Agent makes no representation as to the validity, accordinglyvalue, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
11.8 The Escrow Agent shall not be responsible except for called upon to advise any Party as to the performance wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
11.9 The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property to any successor escrow agent jointly designated by the other Parties hereto in writing or to any court of competent jurisdiction pursuant to an action in interpleader, whereupon the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier of the date (the "Resignation Date") of the appointment of a successor (including a court of competent jurisdiction) or the date which is 30 days after the date of delivery of its written notice of resignation to the other Parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to Buyer and Sellers on the appointment of such duties and obligations as successor escrow agent. If at the Resignation Date the Escrow Agent has undertaken in this Agreement;not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other Parties hereto or a Final Determination.
(b) the 11.10 The Escrow Agent shall not be responsible have no responsibility for the contents of any error writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
11.11 In the event of any disagreement between Buyer and Sellers resulting in judgement adverse claims or for any act done demands being made in connection with the Escrowed Property, or step taken or omitted to be taken by in the event that the Escrow Agent in good faith or for any mistake, is in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question doubt as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreementwhat action it should take hereunder, the Escrow Agent shall have be entitled to retain the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and Escrowed Property until the Escrow Agent shall incur no responsibility have received a Final Determination directing delivery of the Escrowed Property or joint written instructions executed by Buyer and Sellers directing delivery of the Escrowed Property, in which event the Escrow Agent shall be fully protected in acting in good faith disburse the Escrowed Property in accordance with any opinion such Final Determination or instruction joint written instructions. The Escrow Agent shall act on such Final Determination or joint written instructions without further question.
11.12 The compensation of such counsel; the Corporation Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall pay be the amount of $2,000.00 at the time of execution of this Agreement and $50.00 per transfer of the Escrow Shares, and reimbursement 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). Buyer shall pay all of such fees and expenses identified in this Section 11.12.
11.13 No prospectuses, press releases, reports and promotional material, or other similar materials which mention in any such counsel so retained by language the Escrow Agent;
(d) 's name or the Escrow Agent may resign its trust and be discharged from all rights, powers, or duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims issued by the other Parties hereto or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, Parties' behalf unless the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for first have given its specific written consent thereto; provided, however, that the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation Agent acknowledges that Buyer may file a copy of this Agreement or about as an exhibit with Buyer's filings required under the rights Securities Exchange Act of 1934, as amended, and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect consents to the Escrowed Shares, other than obligations existing as appearance of the date of its name in such delivery of the Escrowed Sharesfilings.
Appears in 1 contract
Samples: Stock Purchase Agreement (Team Inc)
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) 4.1 In exercising the rights, duties and obligations of the Escrow Agent shall be determined solely prescribed or confirmed by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Purchaser and the Vendor jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Transfer Documents or the Purchase Shares, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of loss of the Transfer Documents or the Purchase Shares except the duty to exercise such care in the safekeeping thereof as it would exercise if the Transfer Documents and the Purchase Shares belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Transfer Documents and the Purchase Shares as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth.. The Escrow Agent will not be required to pass upon the sufficiency of any of the Transfer Documents or Purchase Shares or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to, so execute, sign or authorize, issue or authenticate the said documents or any of them, or the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the right sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to consult with and obtain advice from legal counsel appointed be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention.
4.7 In the event that the Transfer Documents or Purchase Shares are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, who may but need the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment. or decrees it will not be legal counsel for liable to any of the parties hereto or to this Agreementany other person, and firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent shall incur no responsibility is authorized and shall directed to disregard in its sole discretion any and all notices and warnings which may be fully protected given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in acting in good faith in accordance with any opinion or instruction case of such counsel; compliance, it shall not be liable by reason thereof to any of the Corporation shall pay the reasonable feesparties hereto or to any other person, expenses and disbursements of firm, association or corporation, even if thereafter any such counsel so retained by the Escrow Agent;order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
(d) 4.9 If the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice receives any written instructions contrary to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided instructions contained in this Agreement, the Escrow Agent is may continue to deliver to such successor all certificates representing hold the Escrowed Transfer Documents or Purchase Shares then in its possession upon payment by until the Corporation lawful determination of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement issue between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its optionhereto.
4.10 If protest is made, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, may continue to hold the Transfer Documents or shall Purchase Shares until the right to the documents is legally determined by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Torontoor otherwise.
4.11 If written notice of protest is made by either the Purchaser or the Vendor to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, Ontario and seek instruction such notice sets out reasons for such protest, the Escrow Agent will be entitled to continue to hold the Transfer Documents or direction from the Purchase Shares until the right to the documents is legally determined by a court of competent jurisdiction, which direction jurisdiction or otherwise.
4.12 The Escrow Agent may include a request for an interpleader order resign as Escrow Agent by giving not less then ten (10) days' notice thereof to each of the Purchaser or the Vendor. The Purchaser and the Corporation and the Shareholder (as the case Vendor may be) shall indemnify terminate the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) by giving to the Escrow Agent shall a notice of termination executed by each of them not less than ten (10) days' prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be entitled effective and the Escrow Agent will cease to represent itself in connection with any legal actions taken in connection with be bound by this Agreement; and
Agreement on the date that is ten (j10) upon days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent’s delivery , the Purchaser and the Vendor may agree upon. All indemnities granted to the Escrow Agent will survive the termination of this Agreement or the resignation or termination of the Escrowed Escrow Agent.
4.13 Notwithstanding anything herein to the contrary, the Escrow Agent may act upon any written instructions given by the Vendor and the Purchaser jointly.
4.14 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between the Purchaser and the Vendor or between any other persons or between any of them with respect to the Asset Purchase Agreement, this Agreement or any matters arising thereto, or with respect to the Shares, the Escrow Agent shall may in its sole discretion deliver and interplead the Transfer Documents and the Purchase Shares into court and such delivery and interpleading will be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect an effective discharge to the Escrowed Shares, other than obligations existing as Escrow Agent.
4.15 The Escrow Agent is under no responsibility to take any action whatsoever unless and until the fees and disbursements of the date of such delivery of the Escrowed SharesEscrow Agent due or reasonably expected to accrue are paid in full.
Appears in 1 contract
Samples: Escrow Agreement (Bingo Com Inc)
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) 4.1 In exercising the rights, duties and obligations of the Escrow Agent shall be determined solely prescribed or confirmed by the provisions of this Agreement and, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
4.2 The Purchaser and the Company jointly and severally covenant and agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent's compliance in good faith with the terms hereof.
4.3 In case proceedings should hereafter be taken in any court respecting the Subscription Proceeds, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Clause 4.2 against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of loss of the Subscription Proceeds except the duty to exercise such care in the safekeeping thereof as it would exercise if the Subscription Proceeds belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Subscription Proceeds as herein directed and to pay and deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Subscription Proceeds or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the right sufficiency, form and manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to consult with and obtain advice from legal counsel appointed be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention.
4.7 In the event that the Subscription Proceeds are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, who may but need the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be legal counsel for liable to any of the parties hereto or to this Agreementany other person, and firm or corporation by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
4.8 Except as herein otherwise provided, the Escrow Agent shall incur no responsibility is authorized and shall directed to disregard in its sole discretion any and all notices and warnings which may be fully protected given to it by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgements or decrees and in acting in good faith in accordance with any opinion or instruction case of such counsel; compliance, it shall not be liable by reason thereof to any of the Corporation shall pay the reasonable feesparties hereto or to any other person, expenses and disbursements of firm, association or corporation, even if thereafter any such counsel so retained by the Escrow Agent;order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
(d) 4.9 If the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice receives any written instructions contrary to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided instructions contained in this Agreement, the Escrow Agent may continue to hold the Subscription Proceeds until the lawful determination of the issue between the parties hereto.
4.10 The Escrow Agent may resign as Escrow Agent by giving not less then ten (10) days' written notice thereof to each of the Purchaser or the Company. The Purchaser and the Company may terminate the Escrow Agent by giving to the Escrow Agent a notice of termination executed by each of them not less than ten (10) days prior to the proposed date of termination. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is ten (10) days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Purchaser and the Company may agree upon. All indemnities granted to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by Escrow Agent will survive the Corporation termination of this Agreement or the resignation or termination of the Escrow Agent’s outstanding fees and expenses, if any);.
(f) the Escrow Agent shall not be required to make any determination or decision with respect 4.11 Notwithstanding anything herein to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusingcontrary, the Escrow Agent may elect act upon any written instructions given by the Company and the Purchaser jointly.
4.12 Notwithstanding anything to make no delivery the contrary contained herein, in the event of any dispute arising between the Escrowed Shares; in so doingPurchaser and the Company or between any other persons or between any of them with respect to the Subscription Agreement, this Agreement or any matters arising thereto, or with respect to the Subscription Proceeds, the Escrow Agent shall not may in its sole discretion deliver and interplead the Subscription Proceeds into court and such delivery and interpleading will be or become liable in any way an effective discharge to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shares.
Appears in 1 contract
The Escrow Agent. 5.1 4.1 The parties acknowledge and agree that:
(a) the duties and obligations of the Escrow Agent shall be determined solely by the provisions of are limited to those specifically provided in this Agreement andand no other, accordingly, and the Escrow Agent shall not be responsible except for have no liability under, and no duty to inquire into the performance terms and provisions of, any agreement between the parties hereto. The Escrow Agent is acting hereunder as an accommodation to the parties hereto. The duties of such duties and obligations as the Escrow Agent has undertaken are purely ministerial in this Agreement;
(b) the nature, and it shall not incur any liability whatsoever, except for its willful misconduct or gross negligence. The Escrow Agent may consult with counsel of its choice (which may be a member of its own firm), and shall not be liable for following the advice of such counsel. The Escrow Agent may act on the advice of counsel but will not be responsible for any error in judgement acting or for any failing to act done or step taken or omitted on the advice of counsel.
4.2 The Holders and the Pledgor jointly and severally covenant and agree from time to be taken by time and at all times hereafter well and truly to save, defend and hold harmless and fully indemnify the Escrow Agent in good faith Agent, its successors, and assigns, from and against all loss, costs, charges, suits, demands, claims, damages, fees and expenses (including reasonable attorney's fees and expenses either paid to retained attorneys or for any mistakeamounts representing the fair value of legal services, in fact or lawbased on its customary billing rates, or for anything rendered to itself) which the Escrow Agent Agent, its successors or assigns may do at any time of times hereafter bear, sustain, suffer or refrain from doing be put unto for or by reason arising out of or in connection with this Agreement except arising out the performance of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of its obligations in accordance with the provisions of this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s duties under 's compliance with the terms hereof. The foregoing indemnities in this Section 4.2 shall survive the resignation or substitution of the Escrow Agent and the termination of this Agreement.
4.3 In case proceedings should hereafter be taken in any court respecting the Securities, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Section 4.2 against its costs of such proceedings.
4.4 The Escrow Agent will have no responsibility in respect of the physical loss of the Securities.
4.5 The Escrow Agent will not be bound in any way by any contract between the parties hereto whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Securities as herein directed and to deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Securities or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential of their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the parties executing this Agreement with the Escrow Agent.
4.6 The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it or of any signature thereon or for the identity, authority or right of any person executing or depositing the same and shall not have any liability for acting in accordance with any written instructions or certificates given to consult with it hereunder signed by the proper parties.
4.7 In no event will the Escrow Agent be deemed to have assumed any liability or responsibility for the sufficiency, form and obtain advice from legal counsel appointed manner of making any notice or demand provided for under this Agreement or of the identity of the persons executing the same, but it shall be sufficient if any writing purporting to be such a notice, demand or protest is served upon the Escrow Agent in any manner sufficient to bring it to its attention.
4.8 In the event that the Securities are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, who may but need the Escrow Agent may, in its sole discretion, obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, order, judgment or decrees it will not be legal counsel for liable to any of the parties hereto or to this Agreementany other person, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion firm or instruction corporation by reason of such counsel; the Corporation shall pay the reasonable feescompliance, expenses and disbursements of any notwithstanding that such counsel so retained by the Escrow Agent;writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the 4.9 The Escrow Agent is authorized and directed to deliver to such successor all certificates representing the Escrowed Shares then disregard in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees sole discretion any and expenses, if any);
(f) the Escrow Agent shall not all notices and warnings which may be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered given to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if by any of the parties hereto or by any other person, firm, association or corporation. It will, however, obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to this Agreementcomply with and obey such orders, including the Escrow Agentjudgments or decrees and in case of such compliance, is in or appears it shall not be liable by reason thereof to be in disagreement about the interpretation of this Agreement or about the rights and obligations any of the Escrow Agent parties hereto or the propriety of an action to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
4.10 If protest is made to any action, contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall may continue to hold the Securities until the right to the documents is legally determined by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction or otherwise.
4.11 If written notice of protest is made by any of the Holders or the Pledgor to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest the Escrow Agent will be entitled to continue to hold the Securities until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.
4.12 This Agreement may be terminated at any time by and upon the receipt by the Escrow Agent of ten (10) days' written notice of termination executed by the Holders and the Pledgor, directing the distribution of all property then held by the Escrow Agent under and pursuant to this Agreement. In the event that a dispute arises in Torontoconnection with the release of the Securities, Ontario the Escrow Agent shall have the sole and seek instruction or direction absolute right to resign in accordance with the provisions of this Section 4.12. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least ten (10) days' prior written notice of such resignation to the Holders and Pledgor and specifying a date upon which such resignation shall take effect. Upon receipt of such notice, a successor escrow agent shall jointly be appointed by the Holders and Pledgor, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If no successor Escrow Agent is appointed prior to the date specified, the Escrow Agent shall have the right at any time to deposit the Securities with a court of competent jurisdiction, which direction may include a request for an interpleader order as specified in Section 6.5 hereof, and the Corporation Escrow Agent shall have no further obligation with respect thereto. The Holders and Pledgor, acting jointly, may at any time substitute a new escrow agent by giving ten (10) days' notice thereof to the Escrow Agent then acting and paying all fees and expenses of such Escrow Agent. In the alternative, in the event of a dispute in relation to the release of the Securities, the Escrow Agent may resign fifteen (15) days after giving written notice of such resignation to the parties hereto and depositing the Securities with an appropriate court, as specified in Section 6.5 hereof, and the Shareholder (as Escrow Agent shall have no further obligation with respect hereto or under this Agreement, in any manner. This Agreement shall automatically terminate if and when all of the case may be) Securities shall indemnify have been distributed by the Escrow Agent in accordance with the terms of this Agreement.
4.13 Notwithstanding anything herein to the contrary, the Escrow may act upon any such actionwritten instructions given by the Pledgor and all of the Holders jointly.
4.14 If any dispute should arise with respect to the ownership or right of possession of the Securities, interpleader or should the Escrow Agent, in its sole judgement, receive conflicting instructions with respect to the instructions contained in this Agreement or to any distribution of the Securities, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any other action portion of the Securities until such dispute shall have been settled either by agreement of the parties concerned by filing of written directions signed by the Holders and Pledgor to the Escrow Agent or proceeding for all costsby a final decree, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) but the Escrow Agent shall be entitled under no duty whatsoever to represent itself institute or defend any such proceedings. Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Holders and the Pledgor or between any other persons or between any of them with respect to the Pledge Agreement, this Agreement or any matters arising thereto, or with respect to the Pledged Stock, the Escrow Agent may in its sole discretion deliver and interplead the Securities into court, as specified in Section 6.5 hereof, and such delivery and interpleading will be an effective discharge to the Escrow Agent.
4.15 The Escrow Agent shall be promptly reimbursed, jointly and severally by the Holders and Pledgor, for reasonable expenses incurred by the Escrow Agent in the performance of services pursuant to this Agreement including, but not limited to, legal fees, including all fees and expenses incurred in connection with its resignation pursuant to Section 4.12.
4.16 The parties hereto hereby expressly agree, acknowledge and consent that the Escrow Agent has served as legal counsel for the Holders and shall be permitted to provide legal counsel to any and all parties to this Agreement, in the future, notwithstanding the agreements set forth herein including, without limitation, any controversy or dispute arising out of this Agreement and waive any claims of conflict of interest relating thereto.
4.17 The Holders and Pledgor shall each bear all of their own fees and expenses incurred by them in resolving any dispute arising under this Agreement. The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent for any costs incurred by the Escrow Agent in connection with any legal actions taken in connection with dispute arising under this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, . The Holders and Pledgor shall jointly and severally reimburse the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to for any other party to this Agreement and to any other person with respect to costs incurred in the Escrowed Shares, other than obligations existing as performance of the date of such delivery of the Escrowed Sharesits duties hereunder.
Appears in 1 contract
Samples: Escrow Agreement (Merlin Software Technologies International Inc)
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) Notwithstanding anything herein to the contrary, the Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as directed by a writing jointly signed by the Shareholder Representative and the Buyer. The reasonable fees and expenses of the Escrow Agent in connection with its execution and performance of this Agreement as set forth on Schedule II hereto shall be borne by the Buyer. The Escrow Agent shall not be liable for any act or failure to act under this Agreement, including any and all claims made against the Escrow Agent as a result of its holding the Escrow Shares in its own name, except for its own gross negligence or willful misconduct. The Escrow Agent shall not be liable for, and the Buyer shall indemnify and hold harmless the Escrow Agent and its directors, employees, officers, agents, successors and assigns against, any losses or claims (including reasonable out-of-pocket expenses) arising out of any action taken or omitted in good faith hereunder and reasonable costs of investigation and counsel fees and expenses which may be imposed on the Escrow Agent or reasonably incurred by it in connection with its acceptance of this appointment or performance of its duties hereunder. The Escrow Agent may decline to act and obligations shall not be liable for failure to act if in doubt as to its duties under this Agreement. The Escrow Agent may act upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give any notice or instruction hereunder, reasonably believed by it to be authorized, has been duly authorized to do so. The Escrow Agent's duties shall be determined only with reference to this Agreement and applicable law and the Escrow Agent is not charged with knowledge of or any duties or responsibilities in connection with any other document or agreement, including without limitation, the Merger Agreement.
(b) The Escrow Agent shall have the right at any time to resign hereunder by giving written notice of its resignation to the parties hereto, at the addresses set forth herein or at such other address as the parties shall provide, at least thirty days prior to the date specified for such resignation to take effect. In such event the Buyer shall with the approval of the Shareholder Representative, which approval shall not be unreasonably withheld, appoint a successor escrow agent within that thirty-day period; if the Buyer does not designate a successor escrow agent within such period, the Escrow Agent may appoint a successor escrow agent. Upon the effective date of such resignation, the Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it to such successor escrow agent or as otherwise shall be designated in writing by the Buyer and the Shareholder Representative.
(c) In the event that the Escrow Agent should at any time be confronted with inconsistent or conflicting claims or demands by the other parties hereto, the Escrow Agent shall have the right to interplead the parties in any court of competent jurisdiction and request that such court determine the respective rights of the parties with respect to this Agreement and, upon doing so, the Escrow Agent shall be determined solely released from any obligations or liability to the other parties as a consequence of any such claims or demands.
(d) The Escrow Agent may execute any of its powers or responsibilities hereunder and exercise any rights hereunder, either directly or by the provisions of or through its agents or attorneys. Nothing in this Agreement and, accordingly, shall be deemed to impose upon the Escrow Agent shall not be responsible except for the performance any duty to qualify to do business or to act as fiduciary or otherwise in any jurisdiction other than The Commonwealth of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Massachusetts. The Escrow Agent shall not be responsible for and shall not be under a duty to examine, inquire into or pass upon the validity, binding effect, execution or sufficiency of this Agreement or of any amendment or supplement hereto.
(e) Neither the Escrow Agent nor any of its directors, officers or employees shall be liable to anyone for any error in judgement of judgment, or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith it or any of its directors, officers or employees, or for any mistake, in mistake of fact or law, or for anything which the Escrow Agent it, or any of its directors, officers or employees, may do or refrain from doing in connection with or in the administration of this Agreement Agreement, unless and except arising out to the extent the same constitutes gross negligence or willful misconduct on the part of the Escrow Agent’s own negligence . In no event shall the Escrow Agent be liable for any indirect, punitive, special or wilful misconduct;consequential damages, or any amount of in excess of the value of the Escrow Fund (as of the date of the action or omission giving rise to liability).
(cf) if there is The Escrow Agent may consult with, and obtain advice from, legal counsel (including, without limitation, in-house counsel) with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Escrow Agent in good faith in accordance with the opinion and directions of such counsel.
(g) The Escrow Agent shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by an officer charged with responsibility for administering this Agreement or unless in writing received by the Escrow Agent and making specific reference to this Agreement.
(h) No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds, or to take any legal or other action hereunder which might in its judgment involve it in, or require it to incur in connection with the performance of its duties hereunder, any expense or any financial liability unless it shall be furnished with indemnification acceptable to it.
(i) Any permissive right of the Escrow Agent to take any action hereunder shall not be construed as duty.
(j) All indemnifications contained in this Agreement shall survive the resignation or removal of the Escrow Agent’s duties under , and shall survive the termination of this Agreement.
(k) The Escrow Agent is not responsible for the recitals appearing in this Agreement. The recitals shall be deemed to be statements of the Buyer and the Shareholders.
(l) The Escrow Agent has no responsibility for the sufficiency of this Agreement for any purpose. Without limiting the foregoing, if any security interest is referred to herein, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreementno responsibility for, and makes no representation or warranty as to, the creation, attachment or perfection of any such security interest or the sufficiency of this Agreement therefor.
(m) Nothing in this Agreement shall obligate the Escrow Agent shall incur no responsibility and shall to qualify to do business or act in any jurisdiction in which it is not presently qualified to do business, or be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) deemed to impose upon the Escrow Agent may resign its trust and be discharged from all the duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint of a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights trustee. The duties of the Escrow Agent under this Agreement are strictly ministerial in nature.
(and, if a successor escrow agent is appointed as provided in this n) In no event shall the Escrow Agent have any liability for any failure or inability of any of other party to perform or observe its duties under the Agreement, or by reason of a breach of this Agreement by any other party. In no event shall the Escrow Agent be obligated to take any action against any other party to compel performance hereunder.
(o) The Escrow Agent shall in no instance be obligated to commence, prosecute or defend any legal proceedings in connection herewith.
(p) Whenever the terms hereof call for any notice, payment or other action on a day which is not a business day, such payment or action may be taken, or such notice given, as the case may be, on the next succeeding business day. As used herein, "business day" shall mean any day other than a Saturday or Sunday, or any other day on which the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);closed for business.
(fq) In the Escrow Agent shall not be required to make any determination or decision with respect to the validity event of any claim made by any party ambiguity or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to uncertainty under this Agreement, including the Escrow Agentor in any notice, is in instruction, or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated other communication received by the Escrow Agent under this Agreementhereunder, the Escrow Agent may, at in its optiondiscretion, or shall by direction of the Corporation or the Shareholderrefrain from taking action, deposit the Escrowed Shares or any part thereof then in and may retain the Escrow Agent’s possession Fund, until and unless it receives written instruction signed by all Interested Parties which eliminates such uncertainty or ambiguity.
(r) If at any time Escrow Agent is served with a court any judicial or administrative order, judgment, decree, writ or other form of competent jurisdiction judicial administrative process which in Torontoany way relates to or affects the Escrow Fund (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the Escrow Fund), Ontario Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel deems appropriate; and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify if the Escrow Agent in complies with any such actionjudicial or administrative order, interpleader judgment, decree, writ or any other action form of judicial or proceeding for all costsadministrative process, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall not be entitled liable to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and parties hereto or to any other person with respect or entity notwithstanding that though such order, judgment, decree, writ or process may be subsequently modified, annulled, set aside, vacated, found to the Escrowed Shareshave been without proper jurisdiction, other than obligations existing as of the date of such delivery of the Escrowed Sharesor otherwise determined to have been without legal force or effect.
Appears in 1 contract
Samples: Escrow Agreement (Blais John F Jr)
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) The Escrow Agent hereunder shall be Xxxx Marks & Xxxxx LLP as escrow agent. If the duties Closing takes place in accordance with the terms hereof, the Deposit shall be paid to Seller and obligations Purchaser shall receive credit for the entire amount thereof. If for any reason the Closing does not occur in accordance with the terms hereof and either party makes a written demand upon the Escrow Agent for payment of the Deposit, the Escrow Agent shall give written notice to the other party of such demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment or delivery within seven (7) business days after the giving of such notice, the Escrow Agent is hereby authorized to make such delivery to the party requesting payment. If the Escrow Agent receives written objection within such seven (7) day period with respect to a request to deliver the Deposit, the Escrow Agent shall continue to hold the same until otherwise directed by joint written instructions from the parties to this Contract or a final judgment of court of competent jurisdiction, except as otherwise provided below. In the event of a good faith dispute as to the payment of the Deposit and subsequently legal proceedings are commenced, if the party which objected to the payment of the Deposit is the losing party, then such party shall be determined responsible to pay or reimburse the prevailing party (after judicial determination) for all costs and expenses incurred in connection with such proceeding.
(b) The parties acknowledge that the Escrow Agent is holding the Deposit solely by as a stakeholder at their request and for their convenience, that the provisions Escrow Agent acting in such capacity shall not be deemed to be the agent of this Agreement andeither of the parties, accordingly, and that the Escrow Agent shall not be responsible except liable to either of the parties for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;any act or omission on its part unless taken in, or resulting from, its willful misconduct, or gross negligence.
(bc) the The Escrow Agent shall not be responsible for bound by any error modification, amendment, termination, cancellation or rescission of this Contract unless the same shall be in judgement or for any act done or step taken or omitted to be taken writing and signed by all of the other parties hereto and, if its duties as Escrow Agent in good faith or for any mistakehereunder are affected thereby, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent unless it shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;given its prior written consent thereto.
(d) the The Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on and shall be protected in acting upon any order, judgment, certification, demand, notice, instrument, opinion or written advice of counsel (including counsel chosen by the terms of this Agreement and the documents tendered Escrow Agent) 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 accordance reliance upon any instrument or signature believed by it in good faith to be genuine and may assume, if in good faith, that any person purporting to give notice or receipt or advice to make any statement or execute any document in connection with the terms of this Agreement;provisions hereof has been duly authorized to do so.
(ge) if there Without limiting the generality of the foregoing, it is agreed and understood that Escrow Agent may act upon its receipt of a Termination Notice (as hereinafter defined) without any disagreement between the parties obligation whatsoever to this Agreement resulting in adverse claims or demands with respect inquire as to the Escrowed Sharesfactual circumstances under which the same was delivered to it.
(f) The Escrow Agent at any time may: (i) be discharged by the giving to it of a written notice of termination signed by Seller and Purchaser (a "TERMINATION NOTICE") or (ii) resign hereunder by giving written notice of its resignation to the other parties hereto, in either case such discharge or resignation notice to be given at least ten (10) business days prior to the date specified for such discharge or resignation to take effect, and upon the effective date thereof, the Deposit, together with all interest accrued thereon, then held by the Escrow Agent hereunder shall be entitled, at its option, delivered by it to refuse any title company licensed to comply with any claims do business in New York State or demands on it with respect a successor law firm maintaining an Escrow Account in New York State as may be designated in writing by Seller and subject to the Escrowed Shares consent of Purchaser which consent will not be unreasonably withheld or delayed, whereupon all the Escrow Agent's obligations hereunder shall cease and terminate. If no such person shall have been designated by such date, the withdrawing Escrow Agent may petition any court of competent jurisdiction located in the State of New York for the appointment of a successor Escrow Agent; provided, however, Escrow Agent shall continue to hold the Deposit, together with all interest accrued thereon, in accordance herewith until a successor is appointed. Such court may thereupon, after such notice, if any, as long as it may deem proper, appoint a successor Escrow Agent. If no new Escrow Agent is so appointed within (30) days following such disagreement shall continue, and in so refusingpetition, the Escrow Agent may elect deposit the Deposit, together with all interest accrued thereon, with any court it reasonably deems appropriate, whereupon it shall be relieved of all further obligations hereunder. Any successor Escrow Agent appointed as provided in this Section shall execute and deliver to make no delivery the parties hereto an instrument in writing accepting such appointment hereunder, and thereupon the withdrawal of the Escrowed Shares; in so doing, the predecessor Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights effective and all obligations of the predecessor Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction cease and terminate. The sole responsibility of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the predecessor Escrow Agent shall be entitled to represent itself in connection deliver the Deposit, together with any legal actions taken in connection with this Agreement; and
(j) upon the all interest accrued thereon, to such successor Escrow Agent’s delivery . For all purposes of the Escrowed Sharesthis Escrow Agreement, the term "ESCROW AGENT " shall mean and, subject to the provisions of this Section, shall also include its successors and assigns as Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shareshereunder.
Appears in 1 contract
The Escrow Agent. 5.1 (1) The parties acknowledge and agree that:Escrow Agent undertakes to perform only such duties as are expressly set forth herein.
(a2) The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the duties proper party or parties.
(3) The Escrow Agent shall not be liable for any action taken by it in good faith and obligations reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Escrow Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(4) In the event that the Escrow Agent shall be determined solely by the provisions of this Agreement anduncertain as to its duties or rights hereunder or shall receive instructions, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for claims or demands from any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistakeparty hereto which, in fact or lawits opinion, or for anything which the Escrow Agent may do or refrain from doing in connection conflict with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction.
(5) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date upon which such resignation shall take effect, which date shall not be less than sixty (60) days prior to the date such notice is given and provided that such resignation shall not take effect until a successor Escrow Agent shall have been appointed jointly by Hubbxxx xxx the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;Shareholder Representative.
(d6) This Escrow Agreement expressly sets forth all the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of against the Escrow Agent’s outstanding fees and expenses, if any);
(f) the . The Escrow Agent shall not be required to make any determination or decision with respect to bound by the validity provisions of any claim made by any party or agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to have knowledge of any denial thereof but shall be entitled to rely conclusively on nor responsibility under the terms of this Agreement and the documents tendered to it in accordance with the terms of this Merger Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the . The Escrow Agent shall be entitledunder no duty to inquire into or investigate the validity, at its option, to refuse to comply with any claims accuracy or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery content of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Sharesdocument.
Appears in 1 contract
Samples: Merger Agreement (Hubbell Inc)
The Escrow Agent. 5.1 The parties acknowledge To induce the Escrow Agent to act hereunder, it is further agreed by Acquiror and agree the Seller Representative that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested Escrowed Property held hereunder shall not earn or accrue Interest.
(b) This Agreement expressly sets forth all the duties and obligations of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be determined solely read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement Agreement.
(c) The Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, accordinglyexcept with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, Acquiror, Xxxxxxxx and the Seller Representative (on behalf of the Target's shareholders) shall jointly and severally indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. Without limiting the foregoing, the Escrow Agent shall not in no event be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing liable in connection with this Agreement except arising out its investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrow Agent’s own negligence Escrowed Property or wilful misconduct;
(c) if there is any question as loss of Interest incident to any of the provisions such delays. This Section l0(c) shall survive notwithstanding any termination of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by resignation of the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;.
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the The Escrow Agent shall be entitled to represent itself rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Escrow Agent may act in reliance upon any instrument or signature believed by it in good faith to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement provisions hereof has been duly authorized to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Sharesdo so.
Appears in 1 contract
Samples: Merger Agreement (Haggar Corp)
The Escrow Agent. 5.1 The parties acknowledge To induce the Escrow Agent to act hereunder, it is further agreed by the Buyer and agree the Seller that:
(a) The Escrow Agent shall not be under any duty to give the Escrowed Property held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrowed Property held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
(c) 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 gross negligence or willful misconduct that are successfully asserted against the Escrow Agent, the Buyer and the Seller shall, severally and not jointly, indemnify and hold harmless the Escrow Agent (and any successor escrow agent) from and against one-half of any and all losses, liabilities, claims, actions, damages, and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with 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 hereof, including without limitation, any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Escrowed Property or any loss of interest incident to any such delays. This Section 5(c) shall survive notwithstanding any termination of this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely in good faith upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder in accordance with the terms hereof 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 it in good faith to be genuine and may 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 to do so.
(e) The Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in good faith in accordance with such advice.
(f) The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and has only possession thereof. The Buyer and the Seller shall each pay or reimburse the Escrow Agent upon request for one-half of any transfer taxes or other taxes relating to the Escrowed 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 Account shall be subject to withholding regulations therein in force with respect to United States taxes. It is understood that the Escrow Agent shall be determined solely by responsible for income reporting only with respect to income earned on investment of the provisions Escrowed Property and is not responsible for any other reporting. This Section 5(f) shall survive notwithstanding any termination of this Agreement andor the resignation of the Escrow Agent.
(g) The Escrow Agent makes no representation as to the validity, accordinglyvalue, genuineness or the collectability of any security or other document or instrument held by or delivered to it.
(h) The Escrow Agent shall not be responsible except for called upon to advise any party as to the performance wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) may at any time resign as such by delivering the Escrowed Property and Interest, if any, to any successor escrow agent jointly designated by the Buyer and the Seller 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. The resignation of the Escrow Agent will take effect on the date (the "Resignation Date") which is the earlier to occur of: (i) the date a successor is appointed (including a court of competent jurisdiction) or (ii) the date which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. Upon the appointment of a successor escrow agent, such successor escrow agent shall deliver written notice to the Buyer and the Seller on the appointment of such duties and obligations as successor escrow agent. If at the Resignation Date the Escrow Agent has undertaken in this Agreement;not received a designation of a successor escrow agent, the Escrow Agent's sole responsibility after the Resignation Date shall be to safekeep the Escrowed Property and Interest, if any, until receipt of a designation of successor escrow agent or a joint written disposition instruction by the other parties hereto.
(bj) the The Escrow Agent shall not be responsible have no responsibility for the contents of any error writing of any third party contemplated herein as a means to resolve disputes and may rely without any liability upon the contents thereof.
(k) In the event of any disagreement between the Buyer and the Seller resulting in judgement adverse claims or for any act done demands being made in connection with the Escrowed Property and Interest, if any, or step taken or omitted to be taken by in the event that the Escrow Agent in good faith or for any mistake, is in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question doubt as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreementwhat action it should take hereunder, the Escrow Agent shall have be entitled to retain the right to consult with Escrowed Property and obtain advice from legal counsel appointed by the Escrow AgentInterest, who may but need not be legal counsel for any of the parties to this Agreementif any, and until the Escrow Agent shall incur no responsibility have received (i) a Final Determination (as defined in Section 3(a) and accompanied by the opinion of counsel referred to in Section 3(a)) directing delivery of the Escrowed Property and Interest, if any, or (ii) a written agreement executed by the Buyer and the Seller directing delivery of the Escrowed Property and Interest, if any, in which event the Escrow Agent shall be fully protected in acting in good faith disburse the Escrowed Property and Interest, if any, in accordance with any opinion such Final Determination or instruction agreement. The Escrow Agent shall act on such Final Determination or agreement without further question.
(l) The compensation of such counsel; the Corporation Escrow Agent (as payment in full) for the services to be rendered by the Escrow Agent hereunder shall pay be the amount of $2,500 for the initial year paid by the Buyer at the time of execution of this Agreement and $2,000 annually thereafter, together with reimbursement 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 any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust counsel). All fees and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights expenses of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, hereunder shall be paid by the Buyer. Any fees or expenses of the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in or its possession upon payment counsel which are not paid as provided for herein may be taken from any property held by the Corporation of Escrow Agent hereunder.
(m) No prospectuses, press releases, reports and promotional material or other similar materials which mentions the Escrow Agent’s outstanding fees and expenses's name or the rights, if any);
(f) the Escrow Agent shall not be required to make any determination powers, or decision with respect to the validity duties of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims issued by the other parties hereto or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, parties' behalf unless the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;first have given its specific written consent thereto.
(hn) if there is any disagreement or apparent disagreement between the The other parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including hereto authorize the Escrow Agent, is in or appears for any securities held hereunder, to be in disagreement about use the interpretation services of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreementany United States central securities depository it deems appropriate, including, but not limited to, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order Depository Trust Company and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed SharesFederal Reserve Book Entry System.
Appears in 1 contract
Samples: Stock Purchase Agreement (Daisytek International Corporation /De/)
The Escrow Agent. 5.1 The parties acknowledge 1. Any sums required to be held in escrow under this Agreement shall be held by the Escrow Agent for the benefit of the Lead Plaintiffs, Named Plaintiffs and agree that:the Settlement Class until they are distributed or returned pursuant to this Agreement and/or further order of the Court.
(a2. Subject to the further Order(s) and/or directions as may be made by the duties and obligations Court, or as provided in the Agreement, the Escrow Agent is authorized to execute such transactions as are consistent with the terms of the Agreement.
3. All funds held by the Escrow Agent shall be determined solely by deemed to be in custodia legis and shall remain subject to the provisions jurisdiction of the Court until such time as the funds shall be distributed or returned pursuant to this Agreement and, accordingly, and/or further order of the Court. The Settlement Fund shall not be distributed until the Effective Date.
4. The Escrow Agent shall not be responsible except for disburse the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or lawGross Settlement Fund, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement any portion thereof, except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation Order of the Escrow Agent’s outstanding fees and expensesCourt, if any);or with the written agreement of Defendants’ counsel.
(f) the 5. The Escrow Agent shall not invest any funds in excess of US $150,000.00 in short-term United States Treasury Securities (or a mutual fund invested solely in such instruments) backed by the Full Faith & Credit of the United States Government or an Agency thereof, or fully insured by the United States Government or an Agency thereof and shall reinvest the proceeds of these instruments as they mature in similar instruments at their then- current market rates. Any funds held in escrow in an amount of less than US $150,000.00 may be required to make any determination or decision with respect held in a bank account insured to the validity of any claim made extent possible by any party or of any denial thereof but the FDIC. Interest earned on the money deposited into the Escrow Account shall be entitled part of the Gross Settlement Fund. All risks related to rely conclusively on the terms investment of this Agreement and the documents tendered to it Gross Settlement Fund in accordance with the terms investment guidelines set forth in this paragraph shall be borne by the Gross Settlement Fund.
6. The Notice and Administration Expenses, including taxes and other expenses, shall be paid from the Gross Settlement Fund by the Escrow Agent. Defendants and the Released Parties shall not have any obligation for payment of taxes or other expenses associated with the Notice and Administration Expenses. In no event shall an amount more than the Settlement Amount be paid under this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect no event shall Defendants be responsible to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in pay any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to amount under this Agreement, including except as expressly provided herein.
7. Defendants shall have access to all records of the Escrow Account, and upon request made to the Escrow Agent, is shall receive copies of all records of disbursements, deposits, and statements of accounts.
8. After the Effective Date, Defendants shall have no interest in the Gross Settlement Fund or appears to in the Net Settlement Fund. Defendants and the other Released Parties shall not be in disagreement about liable for the interpretation loss of this Agreement or about the rights and obligations any portion of the Escrow Agent Gross Settlement Fund or the propriety of an action contemplated by the Escrow Agent under this AgreementNet Settlement Fund, the Escrow Agent maynor have any liability, at its optionobligation, or shall by direction responsibility for the payment of the Corporation or the Shareholderclaims, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Torontotaxes, Ontario and seek instruction or direction from a court of competent jurisdictionlegal fees, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action expenses payable from the Gross Settlement Fund or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed SharesNet Settlement Fund.
Appears in 1 contract
Samples: Settlement Agreement
The Escrow Agent. 5.1 The parties acknowledge and agree that:
(a) the duties and obligations of the Escrow Agent in respect of the Escrow Cash shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall have no knowledge of the terms and provisions of any separate agreement including the Related Agreement and shall have no responsibility for compliance by the Depositor or the Beneficiary with the terms of the Related Agreement, or any other agreement, or for ensuring that the terms of any such agreement are reflected in this Agreement.
5.2 The Escrow Agent shall hold the Escrow Cash in accordance with this Agreement and, accordinglyin particular, (but without limitation) shall not release any part of the Escrow Cash, except as provided in this Agreement.
5.3 The Escrow Agent shall be under no duty to take or omit to take any action with respect to the holding of, or any other matter relating to, the Escrow Cash except in accordance with this Agreement.
5.4 The Escrow Agent shall be under no duty to make recommendations to or advise the Depositor and/or the Beneficiary in connection with the Escrow Cash and the Escrow Agent shall not be responsible except for hold Escrow Cash where instructed to do so by the performance of such duties and obligations as Depositor or the Escrow Agent has undertaken Beneficiary in accordance with this Agreement;
(b) Agreement on the basis that the Escrow Agent shall not be responsible for advising the Depositor and/or the Beneficiary as to the merits of any error particular manner of holding Escrow Cash.
5.5 In the event of a change in judgement any applicable law or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistake, in fact or law, or for anything which the Escrow Agent may do or refrain from doing in connection with this Agreement except arising out of regulatory requirement that affects the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any performance of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, the Escrow Agent shall have the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;
(d) the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under this Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of the Escrow Agent’s outstanding fees and expenses, if any);
(f) the Escrow Agent shall not be required to make any determination or decision with respect to the validity of any claim made by any party or of any denial thereof but shall be entitled to rely conclusively on the terms of this Agreement and the documents tendered to it in accordance with the terms of this Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the Escrow Agent shall be entitled, at its option, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, and in so refusing, the Escrow Agent may elect to make no delivery of the Escrowed Shares; in so doing, the Escrow Agent shall not be or become liable in any way to the Corporation or the Shareholder for the Escrow Agent’s failure or refusal to comply with such claims or demands;
(h) if there is any disagreement or apparent disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares or if any of the parties to this Agreement, including the Escrow Agent, is in or appears to be in disagreement about the interpretation of this Agreement or about the rights and obligations of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at with the prior written agreement of the other Parties, such agreement shall not be unreasonably withheld consult with legal, tax, accounting, and regulatory counsel of its optionown choice and shall have full and complete authorisation and protection for any action taken or omitted to be taken by it under this Agreement in good faith and in accordance with the opinion of legal, tax, accounting, or shall by direction regulatory counsel. Subject to any applicable regulation and/or a formal request of any Party the Corporation Escrow Agent will provide such Party with such information obtained.
5.6 The Escrow Agent does not make any warranties, representations or other statements whatsoever in respect of:
(a) the ability of either the Depositor or the Shareholder, deposit the Escrowed Shares or any part thereof then in the Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder Beneficiary (as the case may be) to transfer full legal and beneficial ownership of the Escrow Cash free from all liens, claims, charges and encumbrances; or
(b) the enforceability of any rights or interests relating to the Escrow Cash, or whether it is appropriate, necessary or desirable to take or omit to take any action (including, without limitation, any form of registration) in relation to the Escrow Cash; or
(c) any legal, tax, accounting, regulatory or investment issues arising in connection with the holding of the Escrow Cash, and these matters shall indemnify be the exclusive concern of the Depositor and the Beneficiary.
5.7 In the event of any dispute between or conflicting claims by any person or persons with respect to the terms of this Agreement and if the Escrow Agent in any such actionis uncertain as to its duties or rights hereunder, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection apply to a court of law to determine the rights of such persons and meanwhile at its option to refuse to comply with any legal actions taken and all claims, demands or instructions with respect to such Escrow Cash or any obligations hereunder so long as such dispute or conflict shall continue. The Escrow Agent shall not be liable or become liable in connection any way for its refusal to comply with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Sharessuch conflicting claims, the or demands or instructions. The Escrow Agent shall be automatically entitled to refuse to act until such conflicting or adverse claims or demands shall have been: (i) finally determined by a non-appealable court order in a court of competent jurisdiction; or (ii) resolved by both the Beneficiary and immediately released from all obligations under this Agreement the Depositor executing and delivering to any other party to this Agreement and to any other person with respect to Escrow Agent joint written instructions regarding the Escrowed Shares, other than obligations existing as settlement of the date dispute. 5.8 The Depositor and Beneficiary hereby authorise the Escrow Agent to act hereunder notwithstanding that: (i) the Escrow Agent or any of its divisions, branches or affiliates may have a material interest in the transaction or that circumstances are such delivery that the Escrow Agent may have a potential conflict of duty or interest including the fact that the Escrow Agent or any of its affiliates may: (a) provide brokerage or other services to other customers; (b) act in the same transaction as agent for more than one customer; (c) have a material interest in the relevant transaction; or (d) earn profits from any of the Escrowed Sharesactivities listed herein; or (ii) the Escrow Agent or any of its divisions, branches or affiliates may be in possession of information tending to show that the instructions received may not be in the best interests of the Depositor or Beneficiary, as the case may be, and the Depositor and Beneficiary agree that the Escrow Agent is not under any duty to disclose any such information.
Appears in 1 contract
Samples: Contract for the Provision of Mobile Drilling Rig Services (Hyperdynamics Corp)
The Escrow Agent. 5.1 (2) The parties acknowledge Escrow Agent may rely and agree that:shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
(a3) The Escrow Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be authorized or within the duties rights or powers conferred upon it by this Escrow Agreement, and obligations may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(4) In the event that the Escrow Agent shall be determined solely by the provisions of this Agreement anduncertain as to its duties or rights hereunder or shall receive instructions, accordingly, the Escrow Agent shall not be responsible except for the performance of such duties and obligations as the Escrow Agent has undertaken in this Agreement;
(b) the Escrow Agent shall not be responsible for claims or demands from any error in judgement or for any act done or step taken or omitted to be taken by the Escrow Agent in good faith or for any mistakeparty hereto which, in fact or lawits opinion, or for anything which the Escrow Agent may do or refrain from doing in connection conflict with this Agreement except arising out of the Escrow Agent’s own negligence or wilful misconduct;
(c) if there is any question as to any of the provisions of this Agreement or the Escrow Agent’s duties under this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other parties hereto or by a final order or judgment of a court of competent jurisdiction.
(5) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date upon which such resignation shall take effect, which date shall not be less than sixty (60) days prior to the date such notice is given and provided that such resignation shall not take effect until a successor Escrow Agent shall have been appointed jointly by Hubbxxx xxx the right to consult with and obtain advice from legal counsel appointed by the Escrow Agent, who may but need not be legal counsel for any of the parties to this Agreement, and the Escrow Agent shall incur no responsibility and shall be fully protected in acting in good faith in accordance with any opinion or instruction of such counsel; the Corporation shall pay the reasonable fees, expenses and disbursements of any such counsel so retained by the Escrow Agent;Shareholder Representative.
(d6) This Escrow Agreement expressly sets forth all the Escrow Agent may resign its trust and be discharged from all duties and obligations under this Agreement by giving not less than 10 days’ advance notice to the Corporation and the Shareholder;
(e) if the Escrow Agent resigns as escrow agent or is removed in accordance with this Agreement, the Corporation shall have the right and obligation to appoint a succeeding escrow agent who, in each case, upon accepting such appointment shall assume all of the obligations and responsibilities and shall be entitled to enjoy the benefits and rights of the Escrow Agent under with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Escrow Agreement (and, if a successor escrow agent is appointed as provided in this Agreement, the Escrow Agent is to deliver to such successor all certificates representing the Escrowed Shares then in its possession upon payment by the Corporation of against the Escrow Agent’s outstanding fees and expenses, if any);
(f) the . The Escrow Agent shall not be required to make any determination or decision with respect to bound by the validity provisions of any claim made by any party or agreement among the other parties hereto except this Escrow Agreement and shall not be deemed to have knowledge of any denial thereof but shall be entitled to rely conclusively on nor responsibility under the terms of this Agreement and the documents tendered to it in accordance with the terms of this Merger Agreement;
(g) if there is any disagreement between the parties to this Agreement resulting in adverse claims or demands with respect to the Escrowed Shares, the . The Escrow Agent shall be entitledunder no duty to inquire into or investigate the validity, at its optionaccuracy or content of any such document.
(7) Hubbxxx xxx the Shareholder Representative (on behalf of the Shareholders) hereby agree, jointly and severally, to refuse to comply with any claims or demands on it with respect to the Escrowed Shares as long as such disagreement shall continue, indemnify and in so refusing, hold harmless the Escrow Agent against any and all costs, losses, claims, damages, liabilities, expenses, including reasonable costs of investigation, court costs, and attorneys' fees and disbursements, which may elect to make no delivery of the Escrowed Shares; in so doing, be imposed upon the Escrow Agent shall not be in connection with its acceptance of appointment as Escrow Agent hereunder, including any litigation arising from this Agreement or become liable involving the subject matter hereof, except in any way to the Corporation or the Shareholder for case of the Escrow Agent’s failure 's own willful default or refusal to comply with gross negligence; 50% of any such claims or demands;
(h) if there is any disagreement or apparent disagreement between amount shall be payable by Hubbxxx xxx 50% shall be payable by the parties to Shareholder Representative on behalf of the Shareholders. Anything in this Agreement resulting in adverse claims or demands with respect agreement to the Escrowed Shares contrary notwithstanding, 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 any the Escrow Agent has been advised of the parties to likelihood of such loss or damage and regardless of the form of action; provided, however, that this Agreement, including sentence 8 8 shall not apply in the Escrow Agent, is in case of gross negligence or appears to be in disagreement about bad faith on the interpretation of this Agreement or about the rights and obligations part of the Escrow Agent or the propriety of an action contemplated by the Escrow Agent under this Agreement, the Escrow Agent may, at its option, or shall by direction of the Corporation or the Shareholder, deposit the Escrowed Shares or any part thereof then in the performance of its duties as Escrow Agent’s possession with a court of competent jurisdiction in Toronto, Ontario and seek instruction or direction from a court of competent jurisdiction, which direction may include a request for an interpleader order and the Corporation and the Shareholder (as the case may be) shall indemnify the Escrow Agent in any such action, interpleader or any other action or proceeding for all costs, expenses and fees in its capacity as escrow agent in connection with any deposit or any action brought in connection with this Agreement;
(i) the Escrow Agent shall be entitled to represent itself in connection with any legal actions taken in connection with this Agreement; and
(j) upon the Escrow Agent’s delivery of the Escrowed Shares, the Escrow Agent shall be automatically and immediately released from all obligations under this Agreement to any other party to this Agreement and to any other person with respect to the Escrowed Shares, other than obligations existing as of the date of such delivery of the Escrowed Shares.
Appears in 1 contract
Samples: Escrow Agreement (Hubbell Inc)
