Disposition and Termination. (a) As soon as practicable (but no later than three business days) after the date that is 12 months following the date of this Agreement (the “Initial Escrow Distribution Date”), the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered in accordance with Section 3(f) hereof. (b) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claim. (c) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser to the Sellers’ Representative in accordance with the notice provisions contained in the Underlying Agreement. (d) Unless the Sellers’ Representative delivers to the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative. (e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final Order. (f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so. (g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency. (h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 7.
Appears in 1 contract
Disposition and Termination. (a) As soon The Escrow Shares shall serve as practicable security for and a source of payment with respect to the Purchaser Indemnified Parties’ rights to indemnification under Article X of the Merger Agreement. Claims under the foregoing rights to indemnification shall hereinafter be referred to, individually as an “Indemnity Escrow Claim” and collectively as “Indemnity Escrow Claims”. For the avoidance of doubt, Indemnity Escrow Claims shall be asserted and resolved solely as set forth in Article X of the Merger Agreement, in each case subject to the time periods and other restrictions set forth in such Article X. The Purchaser shall notify the Stockholder Representative and Escrow Agent in writing of any sums which Purchaser claims are subject to an Indemnity Escrow Claim (an “Indemnity Escrow Notice”) and its calculation of the number of Escrow Shares needed to cover such sums, calculated in accordance with the Merger Agreement. The Escrow Agent shall have no duty to determine whether any Indemnity Escrow Notice accurately describes an Indemnity Escrow Claim or conforms to or is permitted under by or by virtue of the Merger Agreement, but no later than three business daysshall be entitled to assume conclusively and without inquiry that any such Indemnity Escrow Notice satisfies the requirements of the Merger Agreement and this Agreement. The Escrow Agent shall not distribute all or a portion of the Escrow Shares except in accordance with Section 3(b).
(b) Within five (5) Business Days after receipt of either (i) a joint written instruction in the date that is 12 months following form attached hereto as Exhibit A signed by both the date of this Agreement Purchaser and the Stockholder Representative (a “Joint Written Instruction”) or (ii) a Final Order (as defined below), in each case specifying the “Initial amount, if known, asserted by the Purchaser for such Indemnity Escrow Distribution Date”)Claim, the Escrow Agent shall release 50% of disburse the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) Funds as provided in a joint written instruction to the Escrow Agent from Joint Written Instruction or Final Order, as the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreementcase may be. Any Reserved Portion Joint Written Instruction shall continue to be held in escrow under this Agreement contain all requisite information needed by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior order to distribute the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered Shares in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contraryAgreement, if on or before including names, addresses, number of shares, and any other information requested by the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided hereinAgent. For the avoidance of doubt, the preceding sentence Escrow Agent shall survive make distributions of the Escrow Termination Date. In any Claim Notice, Purchaser shall, Shares only in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claimaccordance with a Joint Written Instruction.
(c) At Within five (5) Business Days after the time date that is twelve (12) months from the closing of delivery of any Claim Notice the transactions contemplated by the Merger Agreement (the “Release Date”), the Purchaser and the Stockholder Representative shall deliver a Joint Written Instruction to the Escrow Agent, a duplicate copy instructing the Escrow Agent to disburse to the Stockholder Representative (on behalf of the stockholders of the Company) the number of Escrow Shares, if greater than zero, equal to (i) the number of Escrow Shares less (ii) any Escrow Shares that are subject to an Indemnity Escrow Claim with respect to which the Escrow Agent shall have received an Indemnity Escrow Notice prior to the Release Date, but which remains unresolved or unsatisfied as of such Claim Notice date (the “Disputed Amount”). With respect to any Disputed Amounts, the Escrow Agent shall be delivered by the Purchaser continue to the Sellers’ Representative hold such amounts in escrow in accordance with the notice provisions contained in terms of this Agreement until the Underlying resolution of such underlying Indemnity Escrow Claims. Such Disputed Amounts, once resolved, shall be disbursed by the Escrow Agent pursuant to Section 3(b) of this Agreement.
(d) Unless Upon the Sellers’ Representative delivers to delivery of all of the Escrow Shares by the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative the terms of this Agreement and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final Order.
(f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 76.
(e) For the purposes of this Agreement, “Final Order” means a final and nonappealable order of a court of competent jurisdiction (an “Order”), which Order is delivered to the Escrow Agent accompanied by a written instruction from the Purchaser or the Stockholder Representative (as applicable) given to effectuate such Order and confirming that such Order is final, nonappealable and issued by a court of competent jurisdiction, and the Escrow Agent shall be entitled to conclusively rely upon any such confirmation and instruction and shall have no responsibility to review the Order to which such confirmation and instruction refers.
Appears in 1 contract
Disposition and Termination. (a) As soon as practicable (but no later than three business days(3) Business Days) after the date that is 12 months following the date of this Agreement ten (the “Initial Escrow Distribution Date”), the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein10) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months years following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) to Representative as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying AgreementParties. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the relevant Underlying Agreement Agreements (as defined below), including the section(s) of the relevant Underlying Agreements supporting its claim, and the facts and circumstances supporting its claim, and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 pursuant to the terms of the Underlying Agreements (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claim.
(c) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser to the Sellers’ Representative in accordance with the notice provisions contained in the relevant Underlying AgreementAgreements.
(d) Unless the Sellers’ Representative delivers to the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty thirty (2030) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructionsupon written request from Purchaser, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final Order.
(f) Notwithstanding anything to the contrary in this Agreement, if at any time prior to the Escrow Termination Date, the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of all or any portion of the Escrow Asset, in accordance with the Underlying Agreements or otherwise, the Escrow Agent shall disburse the Escrow Asset such amount pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 6 and Section 7.
Appears in 1 contract
Disposition and Termination. (a) As If the Escrow Agent receives joint written instructions at any time signed by both Parent and the Stockholders’ Agent directing the disposition of all or any portion of the Escrow Fund, the Escrow Agent shall release from the Escrow Fund the amount set forth in such instructions as soon as practicable (practicable, but in no event later than three business daystwo (2) Business Days (as defined hereinafter) after the date of the Escrow Agent’s receipt of such instructions.
(b) If Parent seeks the release of all or a portion of the Escrow Fund during the period prior to the Final Distribution Date in connection with a Claim pursuant to and in accordance with Sections 9 or 1.9 of the Merger Agreement, Parent shall provide written notice concurrently to the Escrow Agent and the Stockholders’ Agent describing the Claim (a “Notice of Claim”), which Notice of Claim shall set forth the Claim in reasonable detail, including Parent’s good faith estimate of the amount of the Claim, and other evidence indicating that Parent is entitled to indemnification under Section 9 of the Merger Agreement or an adjustment of the Merger Consideration pursuant to Section 1.9 of the Merger Agreement. The Escrow Agent will have no obligation to verify the validity of any Notice of Claim or that delivery of such Notice of Claim has been made by Parent to the Stockholders’ Agent. The Escrow Agent shall release to Parent the amount set forth in such Notice of Claim from the Escrow Fund on the date that is 12 months following ten (10) Business Days after the date Escrow Agent’s receipt of this Agreement such written Notice of Claim unless, within such ten (10) Business Day period, the Stockholders’ Agent provides written notice to Parent and the Escrow Agent disputing, in good faith, the validity or appropriateness of the release of such amount to Parent (the “Initial Response Notice”). In the event that the Escrow Agent receives a Response Notice from the Stockholders’ Agent within such 10-Business Day period disputing Parent’s right to all or any portion of the amount sought in the Notice of Claim, then the Escrow Agent shall (i) continue to hold the disputed portion of the Escrow Fund sought in such Notice of Claim (any such amounts, the “Reserved Amounts”), together with any portion of the Escrow Fund not subject to such Notice of Claim or Response Notice, (ii) release to Parent such non-disputed portion of the Escrow Fund sought in the Notice of Claim, and (iii) release such disputed portion of the Escrow Fund sought in the Notice of Claim upon receiving joint written instructions from Parent and the Stockholders’ Agent to effect such release. If within fifteen (15) Business Days of Parent’s receipt of a Response Notice, Parent and the Stockholders’ Agent do not resolve any amount disputed in such Response Notice, then Parent and the Stockholders’ Agent will resolve any dispute in accordance with the procedures for resolving such disputes contained in the Merger Agreement. Parent and the Stockholders’ Agent shall submit evidence of the final resolution of such dispute to the Escrow Agent within two (2) Business Days of the final resolution of such dispute, and the Escrow Agent shall disburse or retain the disputed amount in accordance with such resolution.
(c) On [Insert date that is one year following the Effective Time] (the “Final Distribution Date”), the Escrow Agent shall release 50% of to the Stockholders’ Agent all amounts remaining in the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice)Fund, if any, less any Reserved Portion (as defined hereinAmounts that would be required under Section 4(b) as to satisfy pending or unresolved Claims properly asserted pursuant to a Notice of Claim received by the Escrow Agent prior to the Final Distribution Date. Such funds shall be released pursuant to written instructions provided in a joint written instruction to the Escrow Agent from by the Parties or, if no such instruction is provided, to the SellersStockholders’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement Agent (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Final Distribution Schedule set forth in the Underlying Agreement. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claim.
(c) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser to the Sellers’ Representative in accordance with the notice provisions contained in the Underlying Agreement.
(d) Unless the Sellers’ Representative delivers to the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final OrderInstructions”). The Escrow Agent shall be entitled distribute the final payments to rely the Stockholders’ Agent by wire transfer to an account(s) specified for such purpose as indicated on Schedule 2 or to such account(s) as otherwise specified by the Final Distribution Instructions.
(d) Any Reserved Amounts shall remain in escrow until the final resolution of the related Claims. Following final resolution of any such Claims, the Reserved Amounts shall be released pursuant to the joint written instructions of Parent and the Stockholders’ Agent or Final Order in accordance with the final resolution of such dispute, which shall be submitted to the Escrow Agent by Parent and the Stockholders’ Agent within two (2) Business Days after such resolution. Notwithstanding the foregoing, if a Notice of Claim relates to a Claim under Section 1.9 of the Merger Agreement and Parent and the Stockholders’ Agent have submitted the Claim to an accounting firm in accordance with Section 1.9(d) of the Merger Agreement, then the Escrow Agent will consider the determination of such accounting firm to be final and binding on the parties and upon receipt thereof shall promptly liquidate of such determination along with joint written instruction of Parent and distribute that portion the Stockholders’ Agent to disburse an amount of the remaining Escrow Asset as instructed Fund specified in such accounting firm determination, the Escrow Agent shall deliver the amount of such Claim to Parent in accordance with such accounting firm determination and joint written instructions or Final Orderinstruction.
(e) Upon the distribution of all amounts remaining in the Escrow Fund, this Escrow Agreement shall terminate.
(f) Notwithstanding anything to the contrary in this Escrow Agreement or the Merger Agreement, if this Escrow Agreement and the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement deposit of the Escrow AssetDeposit are without prejudice to and are not in limitation of any obligations of Parent, the Escrow Agent shall disburse Stockholders’ Agent, the Principal Stockholders or the Escrow Asset pursuant Participants in respect to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Assetcovenants, representations or warranties of such parties contained in the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiencyMerger Agreement.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 7.
Appears in 1 contract
Disposition and Termination. (a) As soon The Escrow Shares shall serve as practicable (but no later than three business days) after security for and a source of payment with respect to the date that is 12 months following Parent Indemnified Parties’ rights to indemnification under Article VIII of the date of this Agreement (Combination Agreement. Claims under the foregoing rights to indemnification shall hereinafter be referred to, individually as either a “VSee Indemnity Escrow Claim” or an “iDoc Indemnity Escrow Claim,” as applicable, and collectively as the “Initial Indemnity Escrow Distribution DateClaims.” For the avoidance of doubt, Indemnity Escrow Claims shall be asserted and resolved solely as set forth in Article VIII of the Combination Agreement, in each case subject to the time periods and other restrictions set forth in such Article VIII. Parent shall notify the applicable Company Representative and Escrow Agent in writing of any sums which Parent claims are subject to an Indemnity Escrow Claim (an “Indemnity Escrow Notice”) and its calculation of the number of Escrow Shares needed to cover such sums, calculated in accordance with the Combination Agreement. The Escrow Agent shall have no duty to determine whether any Indemnity Escrow Notice accurately describes an Indemnity Escrow Claim or conforms to or is permitted under by or by virtue of the Combination Agreement, but shall be entitled to assume conclusively and without inquiry that any such Indemnity Escrow Notice satisfies the requirements of the Combination Agreement and this Agreement. The Escrow Agent shall not distribute all or a portion of the Escrow Shares except in accordance with Section 3(b).
(b) Within five (5) Business Days after receipt of either (i) a joint written instruction in the form attached hereto as Exhibit A signed by both Parent and the applicable Company Representative (a “Joint Written Instruction”) which, for purposes of clarification, need be signed by only Parent and one (1) of either the VSee Company Representative or the iDoc Company Representative, as the party to be charged, for any indemnification seeking the cancellation of VSee Shares or iDoc Shares, as applicable, or (ii) a Final Order (as defined below); in each case specifying the amount, if known, asserted by Parent for such Indemnity Escrow Claim, the Escrow Agent shall release 50% of disburse the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) Funds as provided in a joint written instruction to the Escrow Agent from Joint Written Instruction or Final Order, as the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreementcase may be. Any Reserved Portion Joint Written Instruction shall continue to be held in escrow under this Agreement contain all requisite information needed by the Escrow Agent until in order to distribute the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the applicable Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered Shares in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contraryAgreement, if on or before including names, addresses, number of shares, and any other information requested by the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided hereinAgent. For the avoidance of doubt, the preceding sentence Escrow Agent shall survive make distributions of the Escrow Termination DateShares only in accordance with a Joint Written Instruction as described in this section. In any Claim Notice, Purchaser shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claim.
(c) At Within five (5) Business Days after the time date that is six (6) months from the closing of delivery of any Claim Notice the transactions contemplated by the Combination Agreement (the “First Indemnity Release Date”), Parent and the Company Representatives shall deliver a Joint Written Instruction to the Escrow Agent, a duplicate copy instructing the Escrow Agent to disburse to the applicable VSee and iDoc stockholders (on behalf of the stockholders of Parent) the number of VSee Shares and iDoc Shares, as applicable, if greater than zero, equal to the difference between (i) 50% of the then-remaining VSee Shares and iDoc Shares, as applicable, and (ii) any VSee Shares and iDoc Shares, as applicable, that are subject to an Indemnity Escrow Claim with respect to which the Escrow Agent shall have received an Indemnity Escrow Notice prior to the First Indemnity Release Date, but which remains unresolved or unsatisfied as of such Claim Notice date (the “First Indemnity Disputed Amount”). With respect to any First Indemnity Disputed Amounts, the Escrow Agent shall be delivered by the Purchaser continue to the Sellers’ Representative hold such amounts in escrow in accordance with the notice provisions contained in terms of this Agreement until the Underlying resolution of such underlying Indemnity Escrow Claims. Such First Indemnity Disputed Amounts, once resolved, shall be disbursed by the Escrow Agent pursuant to Section 3(b) of this Agreement.
(d) Unless Within five (5) Business Days after the Sellers’ Representative delivers date that is twelve (12) months from the closing of the transactions contemplated by the Combination Agreement (the “Second Indemnity Release Date”), Parent and the Company Representatives shall deliver a Joint Written Instruction to the Escrow Agent, instructing the Escrow Agent a notice objecting in good faith to disburse to the creation applicable Company Representative (on behalf of the Reserved Portion stockholders of Parent) the number of VSee Shares and iDoc Shares, as applicable, if greater than zero, equal to the difference between (i) all of the then-remaining VSee Shares and iDoc Shares, as applicable, and (ii) any VSee Shares and iDoc Shares, as applicable, that are subject to an Indemnity Escrow Claim with respect to which the Escrow Agent shall have received an Indemnity Escrow Notice prior to the Second Indemnity Release Date, but which remains unresolved or any amount thereof), or the claim contained in the Claim Notice unsatisfied as of such date (the “Contest NoticeSecond Indemnity Disputed Amount”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant ). With respect to Section 3(c) hereofany Second Indemnity Disputed Amounts, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold such amounts in escrow any contested Claimed Amount in accordance with the terms of this Agreement until release is otherwise authorized the resolution of such underlying Indemnity Escrow Claims. Such Second Indemnity Disputed Amounts, once resolved, shall be disbursed by the Escrow Agent pursuant to Section 3(e3(b) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representativethis Agreement.
(e) In Upon the event that Sellers’ Representative shall deliver a Contest Notice delivery of all of the Escrow Shares by the Escrow Agent in accordance with Section 3(d) hereof, Sellers’ Representative the terms of this Agreement and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final Order.
(f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 76.
(f) For the purposes of this Agreement, “Final Order” means a final and nonappealable order of a court of competent jurisdiction (an “Order”), which Order is delivered to the Escrow Agent accompanied by a written instruction from Parent or a Company Representative (as applicable) given to effectuate such Order and confirming that such Order is final, nonappealable and issued by a court of competent jurisdiction, and the Escrow Agent shall be entitled to conclusively rely upon any such confirmation and instruction and shall have no responsibility to review the Order to which such confirmation and instruction refers.
Appears in 1 contract
Sources: Stock Escrow Agreement (Digital Health Acquisition Corp.)
Disposition and Termination. (a) As soon The Escrow Fund shall secure obligations with respect to amounts payable by the Stockholders to any of the Parent Indemnitees pursuant to the indemnification provisions set forth in Article VIII of the Merger Agreement. Claims by any of the Parent Indemnitees for payment out of the Escrow Fund based on the Stockholders' obligations under the indemnification provisions set forth in Article VIII of the Merger Agreement shall hereinafter be referred to, individually, as practicable an "Escrow Claim" and, collectively, as "Escrow Claims." This Escrow Agreement shall not change or modify in any way the events or circumstances which give rise to the obligation of the Stockholders to make any payments pursuant to the Merger Agreement, but shall provide Parent Indemnitees security therefor. The Escrow Agent shall disburse the amounts from time-to-time on deposit in the Escrow Fund as follows:
(but no later than three business daysi) after If any of the date that is 12 months following Parent Indemnitees desires to make an Escrow Claim, Parent shall deliver to the date Escrow Agent and to the Stockholder Representative a notice setting forth such Escrow Claim, which notice shall state in reasonable detail the basis for and dollar amount of this the claim in accordance with the terms of the Merger Agreement (the “Initial "Notice of Claim"). If the Stockholder Representative desires to dispute such Escrow Distribution Date”)Claim or any part thereof, the Stockholder Representative shall deliver to the Escrow Agent and Parent a written notice (the "Rebuttal Notice") setting forth in reasonable detail the basis for the dispute of such claim and the portion of such claim (if less than all) which is the subject of the Rebuttal Notice. Stockholder Representative agrees not to object to a Notice of Claim unless the Stockholder Representative in good faith believes that all or a portion (as the case may be) of such claim is not payable to Parent pursuant to the Merger Agreement.
(ii) If, upon the expiration of thirty (30) days after the Notice of Claim has been delivered to the Escrow Agent, the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to not have received a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent Rebuttal Notice from the Parties or, if no such instruction is provided, to the Sellers’ Stockholder Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then the Escrow Agent shall continue distribute to keep in escrow an Parent, out of the Escrow Fund, the dollar amount of shares equal the Escrow Claim provided for in the Notice of Claim, and the Stockholders and Escrow Agent shall have no further liabilities with respect to the Claimed Amount set forth in funds so delivered. If, prior to the expiration of such Claim Notice(sthirty (30) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubtday period, the preceding sentence Escrow Agent shall survive receive a Rebuttal Notice from the Stockholder Representative, the Escrow Termination Date. In Agent shall refrain from distributing to Parent any Claim Notice, Purchaser shall, in reasonable detail to Escrow Funds that are the extent possible, cite the nature subject of the claim, Rebuttal Notice until the section(sEscrow Agent receives either (A) a writing executed by Parent and the Stockholder Representative authorizing the release to Parent of the Underlying Agreement supporting its claimEscrow Funds that are the subject of the Rebuttal Notice or (B) a final, and facts and circumstances supporting its claim.
(c) At the time non-appealable decision of delivery a court of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser to the Sellers’ Representative in accordance with the notice provisions contained in the Underlying Agreement.
(d) Unless the Sellers’ Representative delivers competent jurisdiction presented to the Escrow Agent a notice objecting in good faith writing (which decision shall be certified in writing by the Parent and the Stockholder Representative to the creation effect that such decision is final and non-appealable) directing the release to Parent of Escrow Funds that are the subject of the Reserved Portion Rebuttal Notice
(or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”iii) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Rebuttal Notice includes an objection to only a portion of a Claimed Amountan Escrow Claim, the Escrow Agent shall promptly release to Purchaser Parent an amount from the of Escrow Asset Funds equal to the portion of the Claimed Amount in relation to Escrow Claim for which there is no objection objection; provided, however, that no such partial release by the Escrow Agent shall terminate or otherwise prejudice Parent's rights with respect to amounts claimed in any Notice of Claim which is in excess of the amounts so released.
(iv) On the first business day after prior written notice April 30, 2007 (the "First Release Date"), the Escrow Agent shall distribute to the Sellers’ RepresentativeStockholders, an amount, if greater than zero, equal to fifty percent (50%) of (A) the amount then held in the Escrow Fund less (B) the aggregate amount of all Escrow Claims made by the Parent Indemnitees that have been asserted in writing (and furnished to the Escrow Agent) but are unresolved (the "Unresolved Escrow Claims") as of such date. With respect to any then Unresolved Escrow Claim as of such date, promptly following resolution of any such claim pursuant to the procedures set forth in this Section 4(a), the amount, if any, of such claim which has not been paid to Parent in connection with such resolution, and which would have been paid to the Stockholders if the claim had been resolved prior to the First Release Date, shall be promptly paid by the Escrow Agent to the Stockholders.
(v) On the first business day after April 30, 2008 (the "Second Release Date"), the Escrow Agent shall distribute to the Stockholders, an amount, if greater than zero, equal to (A) the amount then held in the Escrow Fund less (B) the aggregate amount of all Unresolved Escrow Claims as of such date.
(b) This Escrow Agreement shall continue until the resolution of the Unresolved Escrow Claims, and during such continuance, the Escrow Agent shall continue to hold that portion of the Escrow Fund up to the amount of the outstanding Unresolved Escrow Claims only, with the balance of the Escrow Fund being distributed in accordance with subparagraph (v). Upon resolution of all Unresolved Escrow Claims, and the payment of all amounts payable to Parent with respect thereto, the Escrow Agent shall distribute to the Stockholders the balance of the Escrow Fund. To the extent any portion of the Escrow Fund has not been disbursed to the Stockholders pursuant to the preceding sentence within three (3) months following the resolution of all Unresolved Escrow Claims, and the payment of all amounts payable to Parent with respect thereto, the Escrow Agent will promptly deliver any such portion of the Escrow Fund to the Parent, and thereafter the Stockholders shall be entitled to look to Parent only as general creditors thereof with respect to any portion of the consideration payable upon due surrender of their Certificates, Company Stock Options or Company Warrants, without interest.
(c) The escrow provided for hereunder shall terminate upon the disbursement of the aggregate amount of the Escrow Fund pursuant to the terms of this Escrow Agreement.
(d) All amounts distributed to the Stockholders will be distributed by the Escrow Agent in their respective Proportional Amounts. In order to facilitate payments to Stockholders, attached hereto as Schedule 2 is a list of the Stockholders and their respective Proportional Amount. Stockholder Representative will provide addresses and wire instructions to the Escrow Agent prior to the First Release Date.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against All disbursements from the Escrow Asset Fund to Parent pursuant to the relevant Claim Notice. The this Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent Agreement shall be entitled made by wire transfer of cash to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed an account specified by Parent in such joint written instructions or Final Order.
(f) Notwithstanding anything writing to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 7.
Appears in 1 contract
Sources: Merger Agreement (Merrill Corp)
Disposition and Termination. (a) Amounts in the Expenses Escrow Fund shall be released to the Stockholders’ Representative in accordance with the terms and conditions of the Merger Agreement at such times and to such persons or entities as are designated from time to time by the Stockholders’ Representative in writing to the Escrow Agent.
(b) Within three (3) Business Days after the final determination of the Merger Consideration Adjustment in accordance with the Merger Agreement, the Parent and the Stockholders’ Representative shall submit a joint written instruction to the Escrow Agent with respect to the NWC Escrow Fund, and the Escrow Agent shall promptly, but in any event within three (3) Business Days after the joint written instruction is received by the Escrow Agent, disburse the NWC Escrow Fund in accordance with such joint written instruction.
(c) As soon as practicable (but no later than three business days(3) Business Days) after the date that is 12 twelve (12) months following the date of this Agreement (the “Initial Escrow Distribution Termination Date”), the Escrow Agent shall release 50% to the Stockholders’ Representative all remaining amounts of the Indemnity Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), Fund less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying AgreementParties. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b4(d) below become resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser Parent or SellersStockholders’ Representative Represenative from the Indemnity Escrow Asset Fund pursuant to a written instruction delivered in accordance with Section 3(f4(h) hereof.
(bd) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser the Parent a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification or deman for payment pursuant to the Underlying Merger Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, PurchaserParent’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 claim (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) of the Indemnity Escrow Fund (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser Parent shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Merger Agreement supporting its claim, and facts and circumstances supporting its claim.
(ce) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser Parent to the SellersStockholders’ Representative in accordance with the notice provisions contained in the Underlying Merger Agreement.
(df) Unless the SellersStockholders’ Representative delivers to the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty thirty (2030) calendar days of Sellersthe Stockholders’ Representative receiving the relevant Claim Notice pursuant to Section 3(c4(e) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Indemnity Escrow Asset Fund equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ RepresentativeParent. The Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e4(g) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser the Purcahse an amount from the Indemnity Escrow Asset Fund equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representativeobjection.
(eg) In the event that Sellersthe Stockholders’ Representative shall deliver a Contest Notice in accordance with Section 3(d4(f) hereof, Sellersthe Stockholders’ Representative and Purchaser the Parent shall negotiate resolve such dispute in good faith for a period of thirty (30) days after delivery accordance with the terms of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim NoticeMerger Agreement. The Escrow Agent shall make payment with respect to any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellersthe Stockholders’ Representative and Purchaserthe Parent; or (ii) a joint written notification from Purchaser the Parent and the Stockholders’ Representative of a final and non-appealable decision, order, judgment or decree of a court of competition competent jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining the Indemnity Escrow Asset Fund as instructed in such joint written instructions or Final Order.
(fh) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellersthe Stockholders’ Representative and Purchaserthe Parent, or their respective successors or assigns, as to the disbursement of all or any part of the NWC Escrow AssetFund or the Indemnity Escrow Fund, the Escrow Agent shall disburse the applicable amount of the NWC Escrow Asset Fund or the Indemnity Escrow Fund, as applicable, pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable sole discretion, that the persons executing said joint written instructions are authorized to do so.
(gi) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of balance in the remaining Escrow Assetapplicable Fund, the Escrow Agent shall release the remaining portion of balance in the Escrow Asset respective Fund and shall have no liability or responsibility to the Parties for any deficiency, absent the gross negligence, bad faith or wiful misconduct of the Escrow Agent as set forth in Section 5(b).
(hj) Upon delivery of any and all remaining Escrow Asset balances in the Funds by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 78.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Creative Realities, Inc.)
Disposition and Termination. (a) As soon as practicable (but no later than three business daysBusiness Days) after the date that is 12 months following the date 12-month anniversary of this Agreement (the “Initial Escrow Distribution Date”), the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset Assets less any Reserved Portion (as defined herein) as provided to the Stockholders, unless otherwise instructed in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed delivered in accordance with the Escrow Distribution Schedule set forth in the Underlying AgreementSection 3(f) hereof. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become are finally resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser Remark or Sellers’ Representative the Stockholders from the Escrow Asset Assets pursuant to a written instruction delivered in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser Remark a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Merger Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, PurchaserRemark’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser Remark common stock calculated by dividing such dollar amount by $8.50 the Current Market Price (as defined herein) (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser Remark shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Merger Agreement supporting its claim, and facts and circumstances supporting its claim.
(c) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser Remark to the Sellers’ Representative Stockholder Representatives in accordance with the notice provisions contained in the Underlying Merger Agreement.
(d) Unless the Sellers’ Representative delivers Stockholder Representatives deliver to the Escrow Agent a written notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), ) or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days after delivery of Sellers’ Representative receiving the relevant Claim Notice to the Stockholder Representatives pursuant to Section 3(c) hereofhereof (the “Response Period”), the Escrow Agent shall, without further instructions, promptly liquidate that portion instructions and within three (3) Business Days after the expiration of the Escrow Asset Response Period, deliver to Remark an amount of shares equal to the Claimed Amount (as set forth expressed in dollars) divided by the Current Market Price on the date of such Claim release. If the Escrow Agent receives a Contest Notice and deliver such amount to Purchaser after prior written notice to within the Sellers’ Representative. Response Period, the Escrow Agent shall continue to hold in escrow any contested portion of the Claimed Amount objected to in the Contest Notice until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount Remark from the Escrow Asset Assets an amount of shares equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to (as expressed in dollars) divided by the Sellers’ RepresentativeCurrent Market Price on the date of such release.
(e) In If the event that Sellers’ Representative shall deliver Escrow Agent receives a Contest Notice within the Response Period in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any portion of the Claimed Amount subject objected to such in the Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ at least one Stockholder Representative and PurchaserRemark; or (ii) a written notification from Purchaser Remark of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute release that portion of the remaining Escrow Asset Assets as instructed in such joint written instructions or Final Order.
(f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative the Stockholder Representatives and PurchaserRemark, or their respective successors or assigns, as to the disbursement of the Escrow AssetAssets, the Escrow Agent shall disburse the Escrow Asset Assets pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount Claimed Amount to be released at any time or under any circumstances exceeds the then current market value Current Market Price of the remaining Escrow AssetAssets on the date of release, the Escrow Agent shall release the remaining portion of the Escrow Asset Assets and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset Assets by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 7.
(i) All releases of the Escrow Assets to the Stockholders shall be made in accordance with the ownership percentages listed on Schedule 3 hereto.
(j) In all cases, the Current Market Price is to be provided by Remark when Escrow Assets are to be released by Escrow Agent. “Current Market Price” means, in respect of any shares of Remark common stock on a specified date, (i) the closing price on such day on the principal stock exchange on which Remark common stock is then listed or admitted to trading, or quoted, as applicable, (ii) if no sale takes place on such day on any such exchange, the last reported closing price on such day as officially quoted on any such exchange, (iii) if Remark common stock is not then listed or admitted to trading on any stock exchange, the last reported closing bid price on such day in the over-the-counter market, as furnished by the OTC Markets Group, (iv) if such corporation at the time is engaged in the business of reporting such prices, as furnished by any similar firm then engaged in such business, or (v) if there is no such firm, as furnished by any member of the Financial Industry Regulatory Authority (“FINRA”) selected mutually by Remark and the Stockholders or, if they cannot agree upon such selection, as selected by two such members of FINRA, one of which shall be selected by Remark and one of which shall be selected by the Stockholders.
Appears in 1 contract
Disposition and Termination. (a) As soon as practicable (but no later than three business daysBusiness Days) after the date that is 12 months following the date of this Agreement (the “Initial Escrow Distribution Date”), the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined hereini) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months 180 days following the date of this Agreement (the “Escrow Termination DateRelease No. 1”), (ii) 365 days following the date of this Agreement (the “Escrow Release No. 2”), and (iii) 540 days following the date of this Agreement (the “Final Escrow Release” and together with Escrow Release No. 1 and Escrow Release No. 2, the “Escrow Releases”), the Escrow Agent shall release the remaining portion disburse, with respect to each Escrow Release, one-third of the Escrow Asset less any Reserved Portion (as defined herein) ), as provided in a joint written instruction instruction, to the Escrow Agent from the Parties, in substantially the form attached hereto as Exhibit A (the “Joint Written Instruction”). Notwithstanding any pending Claim Notice or Contest Notice (as such terms are defined herein), the Parties or, if no such instruction is provided, shall be obligated to execute and submit to the Sellers’ Representative, to be distributed in accordance with Escrow Agent the Joint Written Instruction within three Business Days of the date of each of the Escrow Distribution Schedule set forth in the Underlying AgreementReleases. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the Final Escrow Termination DateRelease. After the Final Escrow Termination DateRelease, the Escrow Agent shall only release disburse all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative Seller from the Escrow Asset pursuant to a Final Order or written instruction delivered in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contrary, if on or before each of the Escrow Termination DateReleases, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for (i) a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount description of the claimamount, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock included in the Escrow Asset calculated by dividing such dollar amount by $8.50 0.5696, of the Damages (as defined in the Underlying Agreement) incurred by the Indemnified Party (the “Claimed Amount”), then (ii) a statement that Purchaser is entitled to indemnification under Article XIV of the Escrow Agent shall continue to keep in escrow Underlying Agreement and a reasonable explanation of the basis therefor (including an amount explanation of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claim.
) and (ciii) At a demand for payment in the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy amount of such Claim Notice shall be delivered by the Purchaser to the Sellers’ Representative in accordance with the notice provisions contained in the Underlying Agreement.
(d) Unless the Sellers’ Representative delivers to the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of . Within thirty (30) days after delivery of the Contest Notice a Claim Notice, Seller shall deliver to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against and the Escrow Asset pursuant Agent a written response in which Seller shall: (A) agree that Purchaser is entitled to receive all of the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount, (B) agree that Purchaser is entitled to receive part, but not all, of the Claimed Amount subject (the “Agreed Amount”), or (C) contest that Purchaser is entitled to such Contest Notice only receive any of the Claimed Amount. Any notice of Seller objecting in accordance with: with the foregoing clauses (iB) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (iiC) a written notification from Purchaser of a final and non-appealable decision, order, judgment to all or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final Order.
(f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent Claimed Amount is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 7.a “
Appears in 1 contract
Sources: Escrow Agreement (CytoDyn Inc.)
Disposition and Termination. (a) As soon as practicable (but no later than three business daysBusiness Days) after the date that is 12 months following the date of this Agreement eighteen (the “Initial Escrow Distribution Date”), the Escrow Agent shall release 50% 18) month anniversary of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement Closing Date (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) and transfer and deliver them to the relevant accounts of Sellers as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying AgreementRepresentative and Buyer. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser Buyer or Sellers’ Representative Sellers from the Escrow Asset pursuant to a written instruction delivered in accordance with Section 3(f) hereof.
(b) The Escrowed Shares shall serve as security for the indemnification obligations of the Sellers set forth in Article 8 of the Underlying Agreement. Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser Buyer one or more notice of claims (including, without limitation, a notice Third Party Claim, Direct Claim, or Tax Claim) delivered to Sellers’ Representative pursuant to Section 8.05 of the Purchase Agreement (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar such amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also claim set forth therein expressed as dollars as well as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 Escrowed Shares (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares the Escrow Asset equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided hereinpursuant to Article 8 of the Underlying Agreement. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claim.
(c) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser to the Sellers’ Representative in accordance with the notice provisions contained in the Underlying Agreement.
(d) Unless the Sellers’ Representative delivers to the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect to any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and PurchaserBuyer; or (ii) a written notification from Purchaser Buyer of the agreement of a Loss or final and non-appealable decision, order, judgment or decree adjudication of a court Loss described in Section 8.06 of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”)the Underlying Agreement. The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and Buyer notification upon receipt and thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final OrderBuyer notification.
(fd) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and PurchaserBuyer, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(ge) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(hf) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 6 and Section 7.
Appears in 1 contract
Disposition and Termination. (a) As soon as practicable (but no later than three business daysBusiness Days) after the date that is 12 months following the date of this Agreement eighteen (the “Initial Escrow Distribution Date”), the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein18) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset Fund less any Reserved Portion (as defined herein) ), as provided in a joint written instruction to the Escrow Agent from the Parties orParties; provided however, that if no such on or before the Escrow Termination Date, the Escrow Agent has not received from Buyer a Claim Notice (as defined below), the Escrow Agent shall release the full Escrow Fund as provided in a written instruction is provided, to the Sellers’ Representative, to be distributed in accordance with Escrow Agent from the Escrow Distribution Schedule set forth in the Underlying AgreementSeller. Any Reserved Portion shall continue to be held in escrow under this Agreement by the Escrow Agent until the claims contained in any the applicable Claim Notice(s) described in Section 3(b4(b) below become is resolved, even if such claims have not been finally resolved prior to the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser Buyer or Sellers’ Representative Seller from the Escrow Asset Fund pursuant to a written instruction delivered in accordance with Section 3(f4(e) hereof.
(b) . Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, the Escrow Agent has received from Purchaser Buyer a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Asset Purchase Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, PurchaserBuyer’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then following the Escrow Termination Date, the Escrow Agent shall continue to keep in escrow an amount the number of shares equal to the quotient of (a) the aggregate Claimed Amount set forth in such Amounts with respect to all outstanding Claim Notice(sNotices divided by (b) the volume-weighted average trading price of the Parent Common Shares on the NASDAQ for the five trading day period ended on the Business Day prior to the Escrow Termination Date (rounded down to the nearest whole share) (the “Reserved Portion”) until such Claimed Amount is resolved as provided herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination Date. In any Claim Notice, Purchaser Buyer shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Asset Purchase Agreement supporting its claim, and facts and circumstances supporting its claim.
(c) . At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered by the Purchaser Buyer to the Sellers’ Representative Seller in accordance with the notice provisions contained in the Underlying Asset Purchase Agreement.
(d) . Unless the Sellers’ Representative Seller delivers to the Escrow Agent a notice objecting in good faith to the creation of the applicable Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty thirty (2030) calendar days of Sellers’ Representative Seller receiving the relevant Claim Notice pursuant to Section 3(c4(d) hereof, the Escrow Agent shall, without further instructions, promptly liquidate deliver that portion of the Escrow Asset Fund equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser Buyer after prior written notice to the Sellers’ RepresentativeSeller. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e4(d) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser Buyer an amount from the Escrow Asset Fund equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) Seller. In the event that Sellers’ Representative Seller shall deliver a Contest Notice in accordance with Section 3(d4(d) hereof, Sellers’ Representative Seller and Purchaser Buyer shall negotiate in good faith for a period of thirty forty-five (3045) days after delivery of the Contest Notice to Purchaser Buyer in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset Fund pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative Seller and PurchaserBuyer authorizing the release to Buyer of the portion of the Fund that is agreed upon as the amount recoverable in respect of the Contest Notice; or (ii) a written notification from Purchaser Buyer of a final and non-appealable order, decision, order, judgment or decree of a court or arbitrator of competition competent jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”)) authorizing the release to Buyer of any portion of the Claimed Amount including a copy of such Final Order. The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion Order. In such event, Buyer may cancel the number of shares (rounded down to the remaining Escrow Asset as instructed nearest whole share) equal to (A) the amount set forth in such joint written instructions or Final Order divided by (B) the volume-weighted average trading price of the Parent common shares on NASDAQ for the five trading day period ended on the Business Day prior to the day of cancellation. The Escrow Agent shall also deliver the Claimed Amount to Seller upon receipt of upon a written notification from Seller of a Final Order.
(f) , including a copy of such Final Order, authorizing the release to Seller of any portion of the Claimed Amount. Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative Seller and PurchaserBuyer, or their respective successors or assigns, delivered in accordance with the provisions of this Agreement as to the disbursement of the Escrow AssetFund, the Escrow Agent shall disburse the Escrow Asset Fund pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) . Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow AssetFund, the Escrow Agent shall release the remaining portion of the Escrow Asset Fund and shall have no liability or responsibility to the Parties for any deficiency.
(h) . Upon delivery of any and all remaining Escrow Asset Fund by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 78.
Appears in 1 contract
Sources: Asset Purchase Agreement (DraftDay Fantasy Sports, Inc.)
Disposition and Termination. (a) As soon The Escrow Shares shall serve as practicable security for and a source of payment with respect to the Parent Indemnitees’ rights to indemnification under Article VIII of the Merger Agreement. Claims under the foregoing rights to indemnification shall hereinafter be referred to, individually as an “Indemnity Escrow Claim” and collectively as “Indemnity Escrow Claims”. For the avoidance of doubt, Indemnity Escrow Claims shall be asserted and resolved solely as set forth in Article VIII of the Merger Agreement, in each case subject to the time periods and other restrictions set forth in such Article VIII. Parent shall notify the Company Representative and Escrow Agent in writing of any sums which Parent claims are subject to an Indemnity Escrow Claim (an “Indemnity Escrow Notice”) and its calculation of the number of Escrow Shares needed to cover such sums, calculated in accordance with the Merger Agreement. The Escrow Agent shall have no duty to determine whether any Indemnity Escrow Notice accurately describes an Indemnity Escrow Claim or conforms to or is permitted under by or by virtue of the Merger Agreement, but no later than three business daysshall be entitled to assume conclusively and without inquiry that any such Indemnity Escrow Notice satisfies the requirements of the Merger Agreement and this Agreement. The Escrow Agent shall not distribute all or a portion of the Escrow Shares except in accordance with Section 3(b).
(b) Within five (5) Business Days after receipt of either (i) a joint written instruction in the date that is 12 months following form attached hereto as Exhibit A signed by both Parent and the date of this Agreement Company Representative (a “Joint Written Instruction”) or (ii) a Final Order (as defined below), in each case specifying the “Initial amount, if known, asserted by Parent for such Indemnity Escrow Distribution Date”)Claim, the Escrow Agent shall release 50% of disburse the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset less any Reserved Portion (as defined herein) Funds as provided in a joint written instruction to the Escrow Agent from Joint Written Instruction or Final Order, as the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreementcase may be. Any Reserved Portion Joint Written Instruction shall continue to be held in escrow under this Agreement contain all requisite information needed by the Escrow Agent until the claims contained in any Claim Notice(s) described in Section 3(b) below become resolved, even if such claims have not been finally resolved prior order to distribute the Escrow Termination Date. After the Escrow Termination Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative from the Escrow Asset pursuant to a written instruction delivered Shares in accordance with Section 3(f) hereof.
(b) Notwithstanding anything in this Agreement to the contraryAgreement, if on or before including names, addresses, number of shares, and any other information requested by the Escrow Termination Date, the Escrow Agent has received from Purchaser a notice (a “Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) and the dollar amount of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”), then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) until such Claimed Amount is resolved as provided hereinAgent. For the avoidance of doubt, the preceding sentence Escrow Agent shall survive make distributions of the Escrow Termination Date. In any Claim Notice, Purchaser shall, Shares only in reasonable detail to the extent possible, cite the nature of the claim, the section(s) of the Underlying Agreement supporting its claim, and facts and circumstances supporting its claimaccordance with a Joint Written Instruction.
(c) At Within five (5) Business Days after the time date that is twelve (12) months from the closing of delivery of any Claim Notice the transactions contemplated by the Merger Agreement (the “Release Date”), Parent and the Company Representative shall deliver a Joint Written Instruction to the Escrow Agent, a duplicate copy instructing the Escrow Agent to disburse to the Company Representative (on behalf of the stockholders of the Company) the number of Escrow Shares, if greater than zero, equal to (i) the number of Escrow Shares less (ii) any Escrow Shares that are subject to an Indemnity Escrow Claim with respect to which the Escrow Agent shall have received an Indemnity Escrow Notice prior to the Release Date, but which remains unresolved or unsatisfied as of such Claim Notice date (the “Disputed Amount”). With respect to any Disputed Amounts, the Escrow Agent shall be delivered by the Purchaser continue to the Sellers’ Representative hold such amounts in escrow in accordance with the notice provisions contained in terms of this Agreement until the Underlying resolution of such underlying Indemnity Escrow Claims. Such Disputed Amounts, once resolved, shall be disbursed by the Escrow Agent pursuant to Section 3(b) of this Agreement.
(d) Unless Upon the Sellers’ Representative delivers to delivery of all of the Escrow Shares by the Escrow Agent a notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative receiving the relevant Claim Notice pursuant to Section 3(c) hereof, the Escrow Agent shall, without further instructions, promptly liquidate that portion of the Escrow Asset equal to the Claimed Amount as set forth in such Claim Notice and deliver such amount to Purchaser after prior written notice to the Sellers’ Representative. Escrow Agent shall continue to hold in escrow any contested Claimed Amount until release is otherwise authorized pursuant to Section 3(e) hereof. If any Contest Notice includes an objection to only a portion of a Claimed Amount, the Escrow Agent shall promptly release to Purchaser an amount from the Escrow Asset equal to the portion of the Claimed Amount in relation to which there is no objection after prior written notice to the Sellers’ Representative.
(e) In the event that Sellers’ Representative shall deliver a Contest Notice in accordance with Section 3(d) hereof, Sellers’ Representative the terms of this Agreement and Purchaser shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser in an effort to settle the claim contained in the relevant Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset pursuant to the relevant Claim Notice. The Escrow Agent shall make payment with respect any Claimed Amount subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”). The Escrow Agent shall be entitled to rely on any such joint written instructions or Final Order and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed in such joint written instructions or Final Order.
(f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative and Purchaser, or their respective successors or assigns, as to the disbursement of the Escrow Asset, the Escrow Agent shall disburse the Escrow Asset pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow Asset, the Escrow Agent shall release the remaining portion of the Escrow Asset and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 76.
(e) For the purposes of this Agreement, “Final Order” means a final and nonappealable order of a court of competent jurisdiction (an “Order”), which Order is delivered to the Escrow Agent accompanied by a written instruction from Parent or the Company Representative (as applicable) given to effectuate such Order and confirming that such Order is final, nonappealable and issued by a court of competent jurisdiction, and the Escrow Agent shall be entitled to conclusively rely upon any such confirmation and instruction and shall have no responsibility to review the Order to which such confirmation and instruction refers.
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Disposition and Termination. (a) As soon as practicable Promptly after the date that is the one-year anniversary of the Closing Date (the “Escrow End Date”), but no later than two Business Days after the Escrow End Date, the Parties shall direct the Escrow Agent in writing to, and the Escrow Agent shall promptly (but no later than three business days) after the date that is 12 months Business Days following the date of this Agreement (the “Initial Escrow Distribution Date”such direction), the Escrow Agent shall release 50% of the Escrow Asset (less any amounts previously deducted pursuant to a Claims Notice), less any Reserved Portion (as defined herein) as provided in a joint written instruction to the Escrow Agent from the Parties or, if no such instruction is provided, to the Sellers’ Representative, to be distributed in accordance with the Escrow Distribution Schedule set forth in the Underlying Agreement. As soon as practicable (but no later than three business days) after the date that is 24 months following the date of this Agreement (the “Escrow Termination Date”), the Escrow Agent shall release the remaining portion of the Escrow Asset Fund less any Reserved Portion (as defined herein) as provided in a joint written instruction the number of Indemnity Escrow Shares equal to the Escrow Agent from number of the Parties or, if no such instruction is provided, Buyer Shares equal to the Sellers’ Representative, to be distributed in accordance with quotient of (i) the Escrow Distribution Schedule set forth in Reserve Amounts divided by (ii) the Underlying Agreement. Any Reserved Portion Escrow End Date VWAP, which number of Indemnity Escrow Shares shall continue to be held and safeguarded in escrow under this Agreement the Escrow Account (the “Reserved Portion”) by the Escrow Agent until the claims contained in any Pending Claim Notice(s) as described in Section 3(b6(b) below become becomes resolved, even if such claims have claim has not been finally resolved prior to the Escrow Termination End Date. As contemplated by Section 2.7(b)(iii) of the SPA, following resolution from time to time of any Pending Claim, Seller and Buyer shall direct the Escrow Agent to distribute from the Escrow Account to Seller, to Buyer, or to both, a number of Indemnity Escrow Shares or Released Indemnity Escrow Shares, equal to such portion of the Escrow Reserve Amounts as is appropriate, as calculated by the Parties pursuant to the SPA, for the resolution of any Pending Claim. After the Escrow Termination End Date, the Escrow Agent shall only release all or any amount of the Reserved Portion to Purchaser or Sellers’ Representative Seller from the Escrow Asset Fund pursuant to a written instruction delivered in accordance with Section 3(f) hereof6(f).
(b) Notwithstanding anything in this Agreement to the contrary, if on or before the Escrow Termination Date, End Date the Escrow Agent has received from Purchaser Buyer a written notice (a “Buyer Claim Notice”) specifying in reasonable detail the nature and basis for a claim for indemnification pursuant to the Underlying Agreement (as defined below) SPA and the dollar amount amounts contemplated by any and all claims for indemnification submitted by Buyer in accordance with Article VII of the claim, or if such amount is unknown, Purchaser’s good faith reasonable estimate of the dollar amount of such claim, in each case also expressed as a number of shares of Purchaser common stock calculated by dividing such dollar amount by $8.50 (the “Claimed Amount”)SPA, then the Escrow Agent shall continue to keep in escrow an amount of shares equal to the Claimed Amount set forth in such Claim Notice(s) (the “Reserved Portion”) Portion until such Claimed Amount Pending Claim is resolved as provided in the SPA and herein. For the avoidance of doubt, the preceding sentence shall survive the Escrow Termination End Date. In any Buyer Claim Notice, Purchaser Buyer shall, in reasonable detail to the extent possible, cite the nature of the claim, the section(s) section or sections of the Underlying Agreement SPA supporting its claim, and facts and circumstances to the extent known, after due inquiry, by Buyer supporting its claim.
(c) At the time of delivery of any Buyer Claim Notice to the Escrow Agent, a duplicate copy of such Buyer Claim Notice shall be delivered by the Purchaser Buyer to the Sellers’ Representative in accordance with the notice provisions contained in the Underlying AgreementSeller.
(d) Unless the Sellers’ Representative Seller delivers to the Escrow Agent a written notice objecting in good faith to the creation of the Reserved Portion (or any amount thereof), or the claim contained in the Buyer Claim Notice (the “Contest Notice”) within twenty (20) calendar days of Sellers’ Representative Seller receiving the relevant Buyer Claim Notice pursuant to Section 3(c) hereof6(c), the Escrow Agent shall, without further instructions, promptly liquidate distribute that portion of the Escrow Asset Fund equal to the Claimed Amount Reserved Portion as set forth determined herein in such Claim Notice accordance with Section 2.7(b)(ii)(B) of the SPA, and deliver such amount to Purchaser Buyer after prior written notice to the Sellers’ RepresentativeSeller. The Escrow Agent shall continue to hold in escrow any contested Claimed Amount Reserved Portion until release is otherwise authorized pursuant to Section 3(e) hereof6(e). If any Contest Notice includes an objection to only a portion of a Claimed Amountthe Reserved Portion, the Escrow Agent shall promptly release to Purchaser Buyer an amount from the Escrow Asset Fund equal to the portion of the Claimed Amount Reserved Portion in relation to which there is no objection after prior written notice to the Sellers’ RepresentativeSeller.
(e) In the event that Sellers’ Representative Seller shall deliver a Contest Notice in accordance with Section 3(d) hereof6(d), Sellers’ Representative Seller and Purchaser Buyer shall negotiate in good faith for a period of thirty (30) days after delivery of the Contest Notice to Purchaser Buyer in an effort to settle the claim contained in the relevant Buyer Claim Notice or agree on the appropriate Reserved Portion, if any, to be applied against the Escrow Asset Fund pursuant to the relevant Buyer Claim Notice. The Escrow Agent shall make payment with respect to any Claimed Amount Reserved Portion subject to such Contest Notice only in accordance with: (i) any joint written instructions executed by both Sellers’ Representative and Purchaser; or (ii) with a written notification from Purchaser of a final and non-appealable decision, order, judgment or decree of a court of competition jurisdiction or an arbitrator, which notification shall attach a copy of such final and non-appealable decision, order, judgment or decree (a “Final Order”)Determination. The Escrow Agent shall be entitled to rely on any such joint written instructions or the Final Order Determination and upon receipt thereof shall promptly liquidate and distribute that portion of the remaining Escrow Asset as instructed Fund in such joint written instructions or Final Orderaccordance with Sections 2.7(b) and 7.6 of the SPA.
(f) Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives joint written instructions from Sellers’ Representative Seller and PurchaserBuyer, or their respective successors or assigns, as to the disbursement release of the any Escrow Asset, the Escrow Agent shall disburse the release such Escrow Asset Assets pursuant to such joint written instructions. The Escrow Agent shall have no obligation to follow any directions set forth in any joint written instructions unless and until the Escrow Agent is satisfied, in its reasonable discretion, that the persons individuals executing said joint written instructions are authorized to do so.
(g) Notwithstanding anything to the contrary in this AgreementAgreement or the SPA, if any amount to be released at any time or under any circumstances exceeds the then current market value of the remaining Escrow AssetFund, the Escrow Agent shall release the remaining portion of the Escrow Asset Fund and shall have no liability or responsibility to the Parties for any deficiency.
(h) Upon delivery of any and all remaining Escrow Asset Assets by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 719.
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Sources: Stock Purchase Agreement (Korn Ferry International)