Release of the Escrow Deposit. Section 3.1 Escrow Fund A Deposit Disbursement. Prior to the date that is no later than five (5) Business Days after the Settlement Date, Buyer and Seller will jointly instruct the Escrow Agent in writing by delivering a certificate executed by Buyer and Seller as to the disbursement of the Escrow Fund A Deposit. Such instructions shall (i) be given in accordance with, and carry out the intent of, Sections 2.3 and 2.4(a) of the Purchase Agreement, (ii) specify the amount of the Escrow Fund A Deposit, if any, to be paid by the Escrow Agent to Buyer and the amount, if any, to be paid to Seller, and (iii) provide payment instructions for each party receiving payment. Promptly upon receipt of such joint written instructions, the Escrow Agent shall disburse the Escrow Fund A Deposit and all earnings thereon in accordance with such instructions. Section 3.2 Stay Bonus/CIC Deposit Disbursement. Pursuant to Section 2.4(b) of the Purchase Agreement, Buyer and Seller will instruct the Escrow Agent in writing from time to time by delivering a certificate executed by Buyer and Seller as to the disbursement of any amounts from the Stay Bonus/CIC Deposit. Within five (5) Business Days after the payment of all amounts due to Buyer in accordance with Sections 2.4(b)(i), 2.4(b)(ii) and 7.21 of the Purchase Agreement, the balance, if any, of the Stay Bonus/CIC Deposit not otherwise distributed to Buyer shall be released to Seller upon the joint instruction of Seller and Buyer to the Escrow Agent. All instructions to the Escrow Agent hereunder shall (i) be given in accordance with, and carry out the intent of, Section 2.4(b) of the Purchase Agreement, (ii) specify the amount of the Stay Bonus/CIC Deposit to be paid by the Escrow Agent to Buyer or Seller as applicable, and (iii) provide payment instructions for each party receiving payment. Promptly upon receipt of any written instructions hereunder, the Escrow Agent shall disburse the applicable portion of the Stay Bonus/CIC Deposit and, with respect to the final payment, all earnings thereon in accordance with such instructions.
Appears in 1 contract
Sources: Stock Purchase Agreement
Release of the Escrow Deposit. The Escrow Agent shall not release the Escrow Deposit (or any portion thereof) to any Escrow Party except in accordance with this Section 3.1 4. Any and all Escrow Fund A Deposit DisbursementProceeds, if any, generated on the Escrow Shares shall be held in Escrow Agent's non-interest bearing deposit account, number 4359812695, account name “▇▇▇▇ Attorney Trust Account” at TD Bank (the “Bank”) and shall not be distributed to any Escrow Party except in accordance with the terms and conditions of this Section 4. Prior to any release of the Escrow Deposit (or any portion thereof) to an Escrow Party, the Escrow Charges (as defined below), if any, shall be paid to the Escrow Agent by the Buyer and TMG.
a. Pursuant to Joint Written Instructions (as defined below) to the Escrow Agent, on each of the first, second and third anniversary of the Closing (each such date that being a “Release Date”) or if such Release Date is no later than five not a Business Day, then on the next Business Day, the Escrow Agent will release one third (51/3) of the aggregate number of Escrow Shares (subject to equitable adjustment for stock splits, stock combinations, reclassifications, recapitalizations or other similar events) together with the Escrow Proceeds corresponding thereto, if any, from escrow to:
i. The, respective Redeeem Parties, if on such Release Date (A) the respective Redeeem Party is not in default of the Lock-Up Agreement, (B) Hill has not been terminated by TMG, Buyer or an Affiliate thereof for Cause (as defined in the Hill Employment Agreement with Buyer) and has not quit such employment by TMG, Buyer or an Affiliate without Good Reason (as defined in the Hill Employment Agreement with Buyer), and (C) solely with respect to the first Release Date, neither Seller nor Hill is in breach of the representations and warranties set forth in the APA and the other Ancillary Documents, in which case the Escrow Agent shall instruct the Transfer Agent to record the respective Redeeem Party as the holder of such Stock in the Transfer Agent's book-entry system and shall wire the corresponding Escrow Proceeds, if any, to such account or accounts designated by the Redeeem Parties in the Joint Written Instructions; or
ii. TMG if any of the conditions precedent described in Section 4(a)(i) is not satisfied on such Release Date or if such Release Date is not a Business Days after Day, then on the Settlement Datenext Business Day
b. Notwithstanding anything to the contrary in this Agreement, if the Escrow Agent receives written instructions from TMG, Buyer and Seller will jointly instruct the Escrow Agent in writing by delivering a certificate executed by Buyer and Seller Hill, or their respective permitted successors or assigns as to the disbursement of the Escrow Fund A Deposit. Such instructions shall (i) be given in accordance with, and carry out the intent of, Sections 2.3 and 2.4(a) of the Purchase Agreement, (ii) specify the amount of the Escrow Fund A Deposit, if any, to be paid by the Escrow Agent to Buyer and the amount, if any, to be paid to Seller, and or any portion thereof (iii) provide payment instructions for each party receiving payment. Promptly upon receipt of such joint written instructions“Joint Written Instructions”), the Escrow Agent shall disburse the Escrow Fund A Deposit pursuant to such Joint Written Instructions. The Escrow Agent shall have no obligation to follow any directions set forth in such Joint Written Instructions unless and all earnings thereon until the Escrow Agent is satisfied, in its sole and absolute discretion, that the persons executing said Joint Written Instructions are authorized to do so and shall not release any portion of the Escrow Deposit to any Person other than to TMG, or the respective Redeeem Parties, in accordance with Section 4(a), without pre-clearing such instructions.
Section 3.2 Stay Bonus/CIC Deposit Disbursementrelease via email confirmation from TMG, and Hill (as applicable). Pursuant to Section 2.4(b) of the Purchase AgreementTMG, Buyer and Seller will instruct the Escrow Agent in writing Hill each agree to issue Joint Written Instructions from time to time by delivering a certificate executed by Buyer and Seller as to the disbursement of any amounts from the Stay Bonus/CIC Deposit. Within five (5) Business Days after the payment of all amounts due to Buyer in good faith in accordance with Sections 2.4(b)(i)the terms of this Agreement and the APA.
c. If, 2.4(b)(ii) at any time, there shall exist any dispute between the Redeeem Parties, on the one hand, and 7.21 Buyer and TMG, on the other hand, with respect to the disposition of the Purchase Agreement, the balance, if any, Escrow Deposit (or any portion thereof) or any other obligations of the Stay Bonus/CIC Deposit not otherwise distributed Escrow Agent hereunder and the Escrow Agent is provided with written notice of the existence of such dispute, or if at any time the Escrow Agent is unable to Buyer shall be released to Seller upon the joint instruction of Seller and Buyer determine, to the Escrow Agent. All instructions 's sole satisfaction and in the Escrow Agent's sole and absolute discretion, the proper disposition of the Escrow Deposit (or any portion thereof) or the Escrow Agent's proper actions with respect to its obligations hereunder, then the Escrow Agent hereunder shall retain the Escrow Deposit (ior any portion thereof which it determines is so under dispute) be given in accordance with, and carry out until the intent of, Section 2.4(b) first to occur of the Purchase Agreement, (ii) specify the amount of the Stay Bonus/CIC Deposit to be paid by following:
i. the Escrow Agent to Buyer receives Joint Written Instructions from the Escrow Parties, or Seller as applicabletheir respective permitted successors and assigns, and (iii) provide payment instructions for each party receiving payment. Promptly upon receipt of any written instructions hereunder, in which case the Escrow Agent shall disburse the applicable Escrow Deposit (or the portion thereof) as instructed in such Joint Written Instructions; or
ii. the Escrow Agent receives a final order of a court of competent jurisdiction (the Stay Bonus/CIC time for appeals therefrom having expired with no appeal being taken) (an “Order”), along with any certification from the Escrow Parties required by a court of competent jurisdiction that the dispute between the Redeeem Parties, on the one hand, and TMG and Buyer, on the other hand, has been resolved and that Escrow Agent shall disburse the Escrow Deposit and, with respect to the final payment, all earnings thereon in accordance with the Order. No Escrow Party shall issue any certificate under this Section 4(c)(ii) unless the Order confirms its entitlement to receive the Escrow Deposit.
d. All payments of monies, if any, required to be made by the Escrow Agent under this Agreement shall be made by wire transfer to TMG or the respective Redeeem Parties (as applicable). Any wire transfers shall be made subject to, and in accordance with, the Bank’s normal funds transfer procedures in effect from time to time. The Escrow Agent shall be entitled to rely upon all bank and account information provided to the Escrow Agent by the Bank or any Escrow Parties. The Escrow Agent shall have no duty to verify or otherwise confirm any written wire transfer instructions but it may do so in its discretion on any occasion without incurring any liability to any of the Escrow Parties for failing to do so on any other occasion. The Escrow Agent shall process all wire transfers based on bank identification and account numbers rather than the names of the intended recipient of the funds, even if such numbers pertain to a recipient other than the recipient identified in the payment instructions. The Escrow Agent shall have no duty to detect any such inconsistencies and shall resolve any such inconsistencies by using the account number.
Appears in 1 contract