ANSS » Topics » Section 11.5 Indemnification Escrow Agents Duties .

This excerpt taken from the ANSS 8-K filed Feb 17, 2006.

Section 11.5 Indemnification Escrow Agent’s Duties.

 

(a) Limitation on Duties of Indemnification Escrow Agent. The Indemnification Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein, and as set forth in any additional written escrow instructions which the Indemnification Escrow Agent may receive after the date of this Agreement which are signed by an officer of Parent and the Stockholders’ Representative, and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have been signed or presented by the proper party or parties. The Indemnification Escrow Agent shall not be liable for any act done or omitted hereunder as Indemnification Escrow Agent while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith.

 

(b) Compliance with Orders. The Indemnification Escrow Agent is hereby expressly authorized to comply with and obey Orders of any Governmental Authority, notwithstanding any notice, warning or other communication from any party or any other Person to the contrary. In case the Indemnification Escrow Agent obeys or complies with any such Order, the Indemnification Escrow Agent shall not be liable to any of the parties hereto or to any other Person by reason of such compliance, notwithstanding any such Order being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction or proper authority.

 

(c) Limitations on Liability of Indemnification Escrow Agent. The Indemnification Escrow Agent shall not be liable in any respect on account of (i) the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for hereunder; or (ii) the expiration of

 

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any rights under any statute of limitations with respect to this Agreement or any documents deposited with the Indemnification Escrow Agent.

 

(d) Good Faith of Indemnification Escrow Agent. In performing any duties under the Agreement, the Indemnification Escrow Agent shall not be liable to any party for damages, Losses, or expenses, except for gross negligence or willful misconduct on the part of the Indemnification Escrow Agent. The Indemnification Escrow Agent shall not incur any such liability for (i) any act or failure to act made or omitted in good faith, or (ii) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement that the Indemnification Escrow Agent shall in good faith believe to be genuine, nor will the Indemnification Escrow Agent be liable or responsible for forgeries, fraud, impersonations or determining the scope of any representative authority. In addition, the Indemnification Escrow Agent may consult with legal counsel in connection with the Indemnification Escrow Agent’s duties under this Agreement and shall be fully protected in any act taken, suffered, or permitted by him, her or it in good faith in accordance with the advice of counsel. The Indemnification Escrow Agent is not responsible for determining and verifying the authority of any Person acting or purporting to act on behalf of any party to this Agreement.

 

(e) Non-Responsibility of Indemnification Escrow Agent. If any controversy arises between or among the parties to this Agreement, or with any other Person, concerning the subject matter of this Agreement, its terms or conditions, the Indemnification Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Indemnification Escrow Agent may hold all documents and cash and may wait for settlement of any such controversy by final appropriate legal proceedings or other means as, in the Indemnification Escrow Agent’s discretion, the Indemnification Escrow Agent may be required, despite what may be set forth elsewhere in this Agreement. In such event, the Indemnification Escrow Agent will not be liable for any damages. Furthermore, the Indemnification Escrow Agent may at its option file an action of interpleader requiring the parties to answer and litigate any claims and rights among themselves. The Indemnification Escrow Agent is authorized to deposit with the clerk of the court all documents and cash and/or Parent Common Stock held in escrow, except all costs, expenses, charges and reasonable attorney fees incurred by the Indemnification Escrow Agent due to the interpleader action and which the parties jointly and severally agree to pay. Upon commencing such action and making such deposit, the Indemnification Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.

 

(f) Indemnification of Indemnification Escrow Agent. Parent and its successors and assigns agree to indemnify and hold the Indemnification Escrow Agent harmless against any and all Losses incurred by the Indemnification Escrow Agent in connection with the performance of the Indemnification Escrow Agent’s duties under this Agreement, including any litigation arising from this Agreement or involving its subject matter.

 

(g) Resignation of Indemnification Escrow Agent. The Indemnification Escrow Agent may resign at any time upon giving at least 30 calendar days’ written notice to the parties; provided, however, that no such resignation shall become effective until the appointment of a successor Indemnification Escrow Agent which shall be accomplished as follows: Parent and Stockholders’ Representative shall use their reasonable best efforts to mutually agree on a

 

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successor Indemnification Escrow Agent within 30 calendar days after receiving such notice. If the parties fail to agree upon a successor escrow agent within such time, the Indemnification Escrow Agent shall have the right to appoint a successor escrow agent authorized to do business in the State of Delaware. The successor escrow agent shall execute and deliver an instrument accepting such appointment and it shall, without further acts, be vested with all the estates, properties, rights, powers, and duties of the predecessor depositary agent as if originally named as Indemnification Escrow Agent. The Indemnification Escrow Agent shall thereupon be discharged from any further duties and liability under this Agreement.

 

(h) Fees. All fees of the Indemnification Escrow Agent for performance of its duties hereunder shall be paid by Parent. In the event that the conditions of this Agreement are not promptly fulfilled, or if the Indemnification Escrow Agent renders any service not provided for in this Agreement, or if the parties request a substantial modification of its terms, or if any controversy arises (other than claims against the Indemnification Escrow Funds, objections to claims and arbitrations as contemplated by Sections 11.3(f), (g) and (h)), or if the Indemnification Escrow Agent is made a party to, or intervenes in, any Action pertaining to the Escrow, this Article XI or its subject matter, the Indemnification Escrow Agent shall be entitled to be reasonably compensated by Parent and the Stockholders’ Representative.

 

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