Significant Transaction. (a) (i) On or before the Effective Date, the Company shall deliver to Escrow Agent a sum (“Escrow Fund”) equal to the applicable Severance Allowance; provided, however, that notwithstanding any provision of this Employment Agreement to the contrary (A) such transfer shall not be made if it would result in the imposition of additional tax under Section 409A(b)(5) of the Code, and (B) after such transfer, the funds shall remain available to satisfy claims of the Company’s general creditors. The Escrow Fund shall be invested by Escrow Agent in certificates of deposit with duration not more than thirty (30) days issued by any bank (including Escrow Agent) or savings institution the accounts of which are insured by the FDIC (and, unless otherwise agreed by the Company and Executive, with a maximum of $100,000 in any single such institution). Any cash accumulation with respect to the Escrow Fund in the form of interest shall be the property of and shall be payable by Escrow Agent to the Company (or to any successor to the Company) as received by Escrow Agent and are not part of the Escrow Fund. (ii) In the event of the occurrence of a Severance Event during the three (3) year period following a Significant Transaction, Executive shall send Escrow Agent and the Company (or its successor) a demand, within thirty (30) days of the Severance Event, that the Escrow Fund be paid to him in accordance with this subparagraph (ii) and subparagraph (vi) (a “Demand”). If the Company (or its successor) does not send an objection to the Demand which states that a Severance Event has not occurred and sets forth specific and detailed facts for the reason for said statement (an “Objection”) to Escrow Agent and Executive prior to the end of the Objection Period (hereafter defined), Escrow Agent shall pay (or commence to pay) the Escrow Fund to Executive on the Delayed Payment Date. The Objection Period shall begin on the date of the Demand and shall end at 5:00 p.m. Philadelphia time, on the tenth calendar day following the date of the Demand, or if such day is not a day when Escrow Agent is generally open for business in Philadelphia, the Objection Period shall end at 5:00 p.m. Philadelphia time on the next day after such tenth day that Escrow Agent is generally open for business in Philadelphia. For purposes of this Paragraph 10(a), notwithstanding the provisions of Paragraph 18, a Demand and an Objection shall not be deemed received until Escrow Agent shall have actually received the Demand or Objection, as the case may be, and all time frames specified in this subparagraph (ii) shall be measured from the actual date of Escrow Agent’s receipt. (iii) If Escrow Agent receives an Objection before the end of the Objection Period, Escrow Agent shall not pay (or commence to pay) the Escrow Fund to Executive, and, except as provided herein, shall not comply with any claims, demands or instructions from Executive and/or the Company (or its successor) with respect to the Escrow Fund. Escrow Agent shall not be or become liable in any way to the Company (or its successor), Executive or any other person or entity for its failure or refusal to comply with such conflicting claims or demands. Escrow Agent shall be entitled to refuse to act until (1) such conflicting claims or demands shall have been finally determined by an award in an arbitration proceeding (pursuant to Paragraph 17), or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to Escrow Agent, or (2) Escrow Agent shall have received security or indemnity satisfactory to Escrow Agent sufficient to save it harmless from and against any and all loss, liability or expense which it may incur by reason of its acting. Escrow Agent may, in addition, elect to commence an interpleader action or seek other judicial relief or orders as it may deem necessary. All of Escrow Agent’s reasonable costs and expenses of bringing and maintaining such action, including but not limited to reasonable fees and expenses of separate counsel for Escrow Agent, shall be paid by the Company (or its successor). Escrow Agent shall pay (or commence to pay) the Escrow Fund to Executive as soon as practicable after, but no later than the end of the first calendar year in which, Executive and the Company enter into a legal binding settlement of the dispute, the Company concedes that the Escrow Fund is payable to Executive, or the Company is required to make such payment pursuant to a final and nonappealable judgment or other binding decision. (iv) If an arbitration proceeding or an interpleader action is commenced by reason of the Company having sent an Objection to a Demand and if said proceeding or action results in a finding or decision in favor of Executive (i.e., that the Objection was improper or inappropriate), then (A) the amount the Company shall pay to Executive under Paragraph 10(a)(iii) shall be increased by (I) interest earned on the Escrow Fund from the date of the Objection to the date the Escrow Fund is paid to Executive, and (II) an amount equal to 25% of the Escrow Fund, and (B) the Company shall reimburse Executive for Executive’s costs and expenses (including counsel fees) in said proceeding or action, subject to the Reimbursement Rule. (v) If Escrow Agent does not receive a timely Demand from Executive by November 30, 2008, Escrow Agent shall pay the Escrow Fund to the Company (or its successor) with ten (10) business days of such date. (vi) The Escrow Fund (and any other amounts due to Executive under this Paragraph 10(a)) shall be paid (A) in a single sum if (I) the Significant Transaction also constitutes a “change in control event” within the meaning of Treas. Reg. §1.409A-3(i)(5) or any successor thereto, and (II) the Severance Event occurs within two (2) years following such Significant Transaction, or (B) in monthly installments in any other case, where the amount of the first monthly installment shall equal the Escrow Fund (and any other amounts due to Executive under this Paragraph 10(a)) multiplied by a fraction, the numerator of which is the number of full months between the Severance Event and the date payment of the Escrow Fund commences (but not more than thirty-six), and the denominator of which is thirty-six (36). The number of additional monthly installments, if any, shall equal the positive excess of thirty-six (36) over the numerator of the fraction described in the previous sentence and each such installment shall be equal to one thirty-sixth (1/36th) of the Escrow Fund (and any other amounts due to Executive under this Paragraph 10(a)). (vii) Escrow Agent’s duties and responsibilities shall be limited to those expressly set forth herein. Escrow Agent shall not be subject to, nor obligated to recognize, any other agreement between or direction or instruction of any of the parties to this Employment Agreement or of any third party even though reference thereto may be made herein. If any portion of the Escrow Fund is at any time attached, garnished or levied upon, or in case the transfer or delivery of the Escrow Fund shall be stayed or enjoined, or in the case of any other legal process or judicial order affecting the Escrow Fund, then Escrow Agent is authorized to comply with any such order in any manner as it or legal counsel of its own choosing deems appropriate; and if it complies with any process, order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person or entity even though such order or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. (viii) Escrow Agent shall not be liable for any act taken or omitted under this Employment Agreement except for its gross negligence or willful misconduct. Escrow Agent shall be fully protected in relying upon any instruction, notice, demand, certificate or document which Escrow Agent in good faith believes to be genuine. Escrow Agent may consult with legal counsel at the expense of the Company (or its successor) as to the construction of any of the provisions of this Employment Agreement, and Escrow Agent shall be fully protected in acting in good faith in accordance with any such advice. (ix) Escrow Agent shall not be responsible in any respect for the form, execution, validity or genuineness of documents deposited under this Employment Agreement, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document. (x) The Company (and its successors) shall indemnify, defend and hold Escrow Agent harmless against any loss, liability, costs, damages and expenses, including reasonable counsel fees, that are incurred by Escrow Agent and that are out of or in connection with its acceptance or administration of this Employment Agreement or being Escrow Agent under this Employment Agreement, except for those arising solely from Escrow Agent’s gross negligence or willful misconduct. (xi) Escrow Agent may resign at any time by giving at least thirty (30) days written notice thereof. Within twenty (20) days after receiving the aforesaid notice, the Company (or its successor) and Executive shall jointly agree on and appoint a successor Escrow Agent at which time Escrow Agent shall distribute the Escrow Fund then held hereunder to the successor Escrow Agent. (xii) The Company (or its successor) shall pay all usual and customary charges and fees of Escrow Agent due to the Escrow Agent for its services hereunder. (xiii) This Paragraph 10(a) may be amended or canceled by and upon written notice to Escrow Agent at any time by each of the Company (or its successor) and Executive, but the duties, responsibilities or liabilities of Escrow Agent may not be increased without its prior consent.
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Significant Transaction. (a) (i) On or before the Effective Date, the Company shall deliver to Escrow Agent a sum (“"Escrow Fund”") equal to the applicable Severance Allowance; provided, however, that notwithstanding any provision of this Employment Agreement to the contrary (A) such transfer shall not be made if it would result in the imposition of additional tax under Section 409A(b)(5) of the Code, and (B) after such transfer, the funds shall remain available to satisfy claims of the Company’s general creditors. The Escrow Fund shall be invested by Escrow Agent in certificates of deposit with duration not more than thirty (30) days issued by any bank (including Escrow Agent) or savings institution the accounts of which are insured by the FDIC (and, unless otherwise agreed by the Company and Executive, with a maximum of $100,000 in any single such institution). Any cash accumulation with respect to the Escrow Fund in the form of interest shall be the property of and shall be payable by Escrow Agent to the Company (or to any successor to the Company) as received by Escrow Agent and are not part of the Escrow Fund.
(ii) In the event of the occurrence of a Severance Event during the three (3) year period following a Significant Transaction, Executive shall send Escrow Agent and the Company (or its successor) a demand, within thirty (30) days of the Severance Event, demand that the Escrow Fund be paid to him in accordance with this subparagraph (ii) and subparagraph (vi) (a “"Demand”"). If the Company (or its successor) does not send an objection to the Demand which states that a Severance Event has not occurred and sets forth specific and detailed facts for the reason for said statement (an “"Objection”") to Escrow Agent and Executive prior to the end of the Objection Period (hereafter defined), Escrow Agent shall pay (or commence to pay) the Escrow Fund to Executive on within thirty (30) days from the Delayed Payment Datedate of the Demand. The Objection Period shall begin on the date of the Demand and shall end at 5:00 p.m. Philadelphia time, on the tenth calendar day following the date of the Demand, or if such day is not a day when Escrow Agent is generally open for business in Philadelphia, the Objection Period shall end at 5:00 p.m. Philadelphia time on the next day after such tenth day that Escrow Agent is generally open for business in Philadelphia. For purposes of this Paragraph 10(a), notwithstanding the provisions of Paragraph 18, a Demand and an Objection shall not be deemed received until Escrow Agent shall have actually received the Demand or Objection, as the case may be, and all time frames specified in this subparagraph (ii) shall be measured from the actual date of Escrow Agent’s 's receipt.
(iii) If Escrow Agent receives an Objection before the end of the Objection Period, Escrow Agent shall not pay (or commence to pay) the Escrow Fund to Executive, and, except as provided herein, shall not comply with any claims, demands or instructions from Executive and/or the Company (or its successor) with respect to the Escrow Fund. Escrow Agent shall not be or become liable in any way to the Company (or its successor), Executive or any other person or entity for its failure or refusal to comply with such conflicting claims or demands. Escrow Agent shall be entitled to refuse to act until (1) such conflicting claims or demands shall have been finally determined by an award in an arbitration proceeding (pursuant to Paragraph 17), or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to Escrow Agent, or (2) Escrow Agent shall have received security or indemnity satisfactory to Escrow Agent sufficient to save it harmless from and against any and all loss, liability or expense which it may incur by reason of its acting. Escrow Agent may, in addition, elect to commence an interpleader action or seek other judicial relief or orders as it may deem necessary. All of Escrow Agent’s 's reasonable costs and expenses of bringing and maintaining such action, including but not limited to reasonable fees and expenses of separate counsel for Escrow Agent, shall be paid by the Company (or its successor). Escrow Agent shall pay (or commence to pay) the Escrow Fund to Executive as soon as practicable after, but no later than the end of the first calendar year in which, Executive and the Company enter into a legal binding settlement of the dispute, the Company concedes that the Escrow Fund is payable to Executive, or the Company is required to make such payment pursuant to a final and nonappealable judgment or other binding decision.
(iv) If an arbitration proceeding or an interpleader action is commenced by reason of the Company having sent an Objection to a Demand and if said proceeding or action results in a finding or decision in favor of Executive (i.e., that the Objection was improper or inappropriate), then (A) the amount the Company shall pay to Executive under Paragraph 10(a)(iii) shall be increased by (I) interest earned on the Escrow Fund from the date of the Objection to the date the Escrow Fund is paid to Executive shall be payable to Executive, and (II) an amount equal to 25% of the Escrow Fund, and (B) the Company shall promptly reimburse Executive for Executive’s 's costs and expenses (including counsel fees) in said proceeding or action, subject action and the Company shall promptly pay Executive a premium in an amount equal to 25% of the Reimbursement RuleEscrow Fund.
(v) If Escrow Agent does not receive a timely Demand from Executive by November 30, 2008within three (3) years from the Effective Date, Escrow Agent shall pay the Escrow Fund to the Company (or its successor) with ten (10) business days at the end of such datethree (3) year period.
(vi) The Escrow Fund (and any other amounts due to Executive under this Paragraph 10(a)) shall be paid (A) in a single sum if (I) the Significant Transaction also constitutes a “change in control event” within the meaning of Treas. Reg. §1.409A-3(i)(5) or any successor thereto, and (II) the Severance Event occurs within two (2) years following such Significant Transaction, or (B) in monthly installments in any other case, where the amount of the first monthly installment shall equal the Escrow Fund (and any other amounts due to Executive under this Paragraph 10(a)) multiplied by a fraction, the numerator of which is the number of full months between the Severance Event and the date payment of the Escrow Fund commences (but not more than thirty-six), and the denominator of which is thirty-six (36). The number of additional monthly installments, if any, shall equal the positive excess of thirty-six (36) over the numerator of the fraction described in the previous sentence and each such installment shall be equal to one thirty-sixth (1/36th) of the Escrow Fund (and any other amounts due to Executive under this Paragraph 10(a)).
(vii) Escrow Agent’s 's duties and responsibilities shall be limited to those expressly set forth herein. Escrow Agent shall not be subject to, nor obligated to recognize, any other agreement between or direction or instruction of any of the parties to this Employment Agreement or of any third party even though reference thereto may be made herein. If any portion of the Escrow Fund is at any time attached, garnished or levied upon, or in case the transfer or delivery of the Escrow Fund shall be stayed or enjoined, or in the case of any other legal process or judicial order affecting the Escrow Fund, then Escrow Agent is authorized to comply with any such order in any manner as it or legal counsel of its own choosing deems appropriate; and if it complies with any process, order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person or entity even though such order or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(viiivii) Escrow Agent shall not be liable for any act taken or omitted under this Employment Agreement except for its gross negligence or willful misconduct. Escrow Agent shall be fully protected in relying upon any instruction, notice, demand, certificate or document which Escrow Agent in good faith believes to be genuine. Escrow Agent may consult with legal counsel at the expense of the Company (or its successor) as to the construction of any of the provisions of this Employment Agreement, and Escrow Agent shall be fully protected in acting in good faith in accordance with any such advice.
(ixviii) Escrow Agent shall not be responsible in any respect for the form, execution, validity or genuineness of documents deposited under this Employment Agreement, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document.
(x) The Company (and its successors) shall indemnify, defend and hold Escrow Agent harmless against any loss, liability, costs, damages and expenses, including reasonable counsel fees, that are incurred by Escrow Agent and that are out of or in connection with its acceptance or administration of this Employment Agreement or being Escrow Agent under this Employment Agreement, except for those arising solely from Escrow Agent’s gross negligence or willful misconduct.
(xi) Escrow Agent may resign at any time by giving at least thirty (30) days written notice thereof. Within twenty (20) days after receiving the aforesaid notice, the Company (or its successor) and Executive shall jointly agree on and appoint a successor Escrow Agent at which time Escrow Agent shall distribute the Escrow Fund then held hereunder to the successor Escrow Agent.
(xii) The Company (or its successor) shall pay all usual and customary charges and fees of Escrow Agent due to the Escrow Agent for its services hereunder.
(xiii) This Paragraph 10(a) may be amended or canceled by and upon written notice to Escrow Agent at any time by each of the Company (or its successor) and Executive, but the duties, responsibilities or liabilities of Escrow Agent may not be increased without its prior consent.the
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