Common use of Claims Against Escrow Fund Clause in Contracts

Claims Against Escrow Fund. For a period of twenty-four (24) months after the Closing Date, Parent shall be entitled to make a written claim against the Escrow Fund in accordance with the terms of the Escrow Agreement for, without duplication: (i) Taxes imposed on or payable by the Company or any Subsidiary for any Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (ii) Taxes imposed on the Company or any Subsidiary as a result of the Company or any Subsidiary being included in an Affiliated Group that files consolidated or combined returns by reason of U.S. Treasury Regulation Section 1.1502-6 or any comparable provision of state, local or foreign law, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (iii) with respect to Straddle Periods, Taxes imposed on or payable by the Company or any Subsidiary which are allocable to the Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; and (iv) Taxes imposed on or payable by the Company or any Subsidiary as a result of a breach of any representation or warranty set forth in Section 3.11 or this Section 5.12. Any such claim against the Escrow Fund shall be reduced by the amount of any Tax Benefit (as defined in Section 7.3(c)) realized with respect to such Taxes for which a claim against the Escrow Fund is being sought. In no event shall any matter, facts or circumstances pertaining to any item (or the amount thereof) set forth on or reflected in the Company's Statement, the Closing Balance Sheet, the Determination, the Final Closing Balance Sheet, the Preliminary Working Capital Amount or the Final Working Capital Amount which resulted in a post-closing adjustment to the Initial Merger Consideration pursuant to Section 2.9 hereof give rise to any claim by Parent on the Escrow Fund under this Section 5.12 or Article VII.

Claims Against Escrow Fund. For (a) Subject to the terms and conditions of this Agreement including without limitation Section 4(c), the Escrow Fund shall be available as collateral security for Zygo's right to payment by a period Shareholder or Shareholders for and in respect of twenty-four Losses. If Zygo shall suffer or incur Losses, it shall provide such notice to the Indemnifying Party as is required in the Merger Agreement. In the event that Zygo does not receive payment of the amount(s) owed by the Indemnifying Party at the time the amount of any liability for Losses on the part of the Indemnifying Party under the Merger Agreement is finally determined in accordance with Article XI of the Merger Agreement, Zygo at its option may, but shall not be obligated to, deliver simultaneously to the Escrow Agent (24in which case it shall also be delivered simultaneously to the Shareholder) months a certificate ("Claim Certificate"), which shall be signed by the President, Chief Financial Officer, or a Vice President of Zygo, to the effect that Zygo has suffered or incurred Losses in the amount specified in such Claim Certificate and setting forth the basis for such Losses. Subject to paragraph (c) and (d) below, upon receipt of any such Claim Certificate, the Escrow Agent shall, as soon as practicable (but not earlier than fifteen (15) Business Days after the Closing Datedelivery to the Escrow Agent of such Claim Certificate), Parent shall be entitled to make a written claim against payment to Zygo from the Escrow Fund in accordance with the terms of this Section 4. Notwithstanding that the Escrow Agreement forAgent is not required to make payment on a Claim Certificate, without duplication: (i) Taxes imposed on or payable by the Company or any Subsidiary for any Pre-Closing Tax Periodbecause, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (ii) Taxes imposed on the Company or any Subsidiary as a result of the Company or any Subsidiary being included in an Affiliated Group that files consolidated or combined returns by reason of U.S. Treasury Regulation Section 1.1502-6 or any comparable provision of state, local or foreign law, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (iii) with respect to Straddle Periods, Taxes imposed on or payable by the Company or any Subsidiary which are allocable to the Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; and (iv) Taxes imposed on or payable by the Company or any Subsidiary as a result of a breach of any representation or warranty set forth in Section 3.11 or this Section 5.12. Any such claim against the Escrow Fund shall be reduced by the amount of any Tax Benefit (as defined in Section 7.3(c)) realized with respect to such Taxes for which a claim against the Escrow Fund is being sought. In no event shall any matter, facts or circumstances pertaining to any item (or the amount thereof) set forth on or reflected in the Company's Statement, the Closing Balance Sheet, the Determination, the Final Closing Balance Sheet, the Preliminary Working Capital Amount or the Final Working Capital Amount which resulted in a post-closing adjustment to the Initial Merger Consideration pursuant to Section 2.9 hereof give rise 4(d) below, the aggregate Losses to any claim by Parent on date (including the losses referred to in such Claim Certificate) do not exceed the Threshold Amount, the Escrow Fund under this Section 5.12 Agent will nevertheless deliver a notice of such claim to the Shareholder or Article VIIShareholders, as the case may be.

Claims Against Escrow Fund. For (a) Subject to the terms and conditions of this Agreement, the Escrow Fund shall be applied to indemnify and hold harmless the Buyer Indemnitees against and in respect of Losses as set forth in a period Claim Certificate (as defined below) duly delivered to the Escrow Agent and the Seller Stockholders prior to the Termination Date. If the Buyer Indemnitees shall suffer or incur Losses as to which indemnification is provided for under the indemnification provisions of twenty-four the Merger Agreement, it or they shall deliver to the Escrow Agent and the Seller Stockholders a certificate (24a "Claim Certificate"), which shall be signed by the President, Chief Executive Officer or Chief Operating Officer of GLOBAL to the effect that Buyer Indemnitees have suffered or incurred Losses in the amount specified in such Claim Certificate and setting forth the basis for such Losses. Upon receipt of any such Claim Certificate and subject to Section 5(b), the Escrow Agent shall, as soon as practicable (but not earlier than twelve (12) months business days after the Closing Date, Parent shall be entitled delivery to the Escrow Agent of such Claim Certificate) pay to Buyer Indemnitees an amount equal to the amount of Losses so suffered or incurred by Buyer Indemnitees as set forth in such Claim Certificate out of the Escrow Fund. Whenever the Escrow Agent is required to make a written claim against payment out of the Escrow Fund hereunder, the Escrow Agent shall withdraw from the Escrow Fund in accordance with a written instruction of GLOBAL (which written instruction shall include a computation of the value of such shares of Buyer Stock and Other Property calculated in accordance with Section 9.04(c) of the Merger Agreement and this Escrow Agreement, and shall include a calculation which confirms that the payment shall be made for the accounts of the Seller Stockholders pro rata in accordance with the ratio of the original deposits of Buyer Stock which comprise the Escrow Fund), (i) first, any cash comprising the Escrow Fund, (ii) second, to the extent that there is insufficient cash to pay the Losses, shares of Buyer Stock and (iii) third to the extent there is an insufficient number of shares of Buyer Stock in the Escrow Fund to pay the Losses, any other property delivered to, and remaining in, the Escrow Fund in accordance with Section 8 hereof ("Other Property"). The Escrow Agent shall transfer, deliver and assign to Buyer Indemnitees such cash, number of shares of Buyer Stock (rounded to the next highest whole share) held in the Escrow Fund and/or Other Property which shall be indicated within the written instrument of Buyer Indemnitees referred to hereinabove and required to be delivered to the Escrow Agent. Shares of Buyer Stock shall be valued in accordance with the terms of Section 9.04(c) of the Merger Agreement and Other Property, if any, shall be valued in good faith by the Board of Directors of GLOBAL. The delivery by the Escrow Agreement for, without duplication: (i) Taxes imposed on or payable Agent to Buyer Indemnitees of the shares of Buyer Stock determined by GLOBAL's computation of their value as stated above and stated in the Company or any Subsidiary for any Pre-Closing Tax Period, except written instruction to the extent such Taxes have been accrued Escrow Agent shall be effected by surrender to GLOBAL, or reflected in the Final Working Capital Amount; (ii) Taxes imposed on the Company or any Subsidiary as a result its transfer agent, of the Company Escrow Certificates then in its possession, and GLOBAL, or any Subsidiary being included in an Affiliated Group that files consolidated or combined returns by reason of U.S. Treasury Regulation Section 1.1502-6 or any comparable provision of stateits transfer agent, local or foreign law, except shall promptly issue to the extent such Taxes have been accrued or reflected Escrow Agent a new stock certificate registered in its name for the Final Working Capital Amount; (iii) with respect to Straddle Periods, Taxes imposed on or payable by the Company or any Subsidiary which are allocable to the Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected number of shares of Buyer Stock then remaining in the Final Working Capital Amount; and (iv) Taxes imposed on or payable by the Company or any Subsidiary as a result of a breach of any representation or warranty set forth in Section 3.11 or this Section 5.12. Any such claim against the Escrow Fund shall be as reduced by the amount number of any Tax Benefit (as defined in Section 7.3(c)) realized with respect shares surrendered to such Taxes for which a claim against the Escrow Fund is being sought. In no event shall any matter, facts or circumstances pertaining to any item (or the amount thereof) set forth on or reflected in the Company's Statement, the Closing Balance Sheet, the Determination, the Final Closing Balance Sheet, the Preliminary Working Capital Amount or the Final Working Capital Amount which resulted in a post-closing adjustment to the Initial Merger Consideration pursuant to Section 2.9 hereof give rise to any claim by Parent on the Escrow Fund under this Section 5.12 or Article VIIBuyer Indemnitees.

Claims Against Escrow Fund. For (a) From time to time during the term of this Agreement, a period Seller (the "Requesting Seller") may request in writing (the "Reimbursement Notice") that the Escrow Agent deliver all or part of twenty-four (24) months after the Closing Date, Parent shall be entitled to make a written claim against the Escrow Fund to the Requesting Seller in order to reimburse it for any amount that is due to the Requesting Seller under Section 1 of the Sellers' Contribution Agreement on account of a payment made to New PCI by the Requesting Seller on account of Pittencrieff Losses under the Pittencrieff Contribution Agreement. The Reimbursement Notice shall (i) specify the amount of the Pittencrieff Losses, and (ii) the Seller or Sellers who contributed the SMR Assets to New PCI that are the subject of the Pittencrieff Losses. The Escrow Agent shall have no responsibility for determining or ascertaining the completeness or accuracy of any Pittencrief Losses. The Escrow Agent shall, within five business days of receipt of a Reimbursement Notice, provide a copy of such Reimbursement Notice to all Sellers, and fifteen business days after the Sellers are deemed pursuant to paragraph 13 to have received such Reimbursement Notice from the Escrow Agent, disburse to Requesting Seller from the Escrow Account shares of Common Stock (valued as provided in paragraph 5(c) hereof), equal to the amount of the reimbursement requested by the Requesting Seller in such Reimbursement Notice, unless prior to the date of disbursement the Escrow Agent receives written notice from Sellers representing a majority in interest of the Escrow Fund, as reflected in Exhibit A (but excluding for this purpose the portion of the Escrow Fund held by the Requesting Seller) disputing (the "Dispute Notice") the Requesting Seller's right to the amount of the reimbursement requested in such Reimbursement Notice (the "Disputed Amount"); provided, however, that if a Dispute Notice states that a portion of the amount of reimbursement requested in the Reimbursement Notice is not in dispute, the undisputed amount shall be disbursed to the Requesting Seller from the Escrow Fund. (b) If any Seller issues a Dispute Notice pursuant to paragraph 5(a), then the Escrow Agent shall continue to hold all amounts remaining in escrow until receipt of written instructions jointly executed by all Sellers, or receipt of an order of any court directing the disbursement of the Disputed Amount (or the portion thereof that is ordered to be disbursed) or a final judgment entered by a court of competent jurisdiction (after all appeals have been finally determined or the time for appeal has expired without an appeal having been made), and shall disburse the Disputed Amount (or the portion thereof that is instructed or ordered to be disbursed) in accordance with such joint instructions or court judgment or order. The Sellers agree to use good faith efforts to promptly resolve any Disputed Amount. (c) For all purposes under this Agreement, the terms Common Stock shall be valued at fair market value thereof which shall mean the average of the Escrow Agreement forclosing bid and asked prices of the Common Stock quoted in the over-the-counter market summary or the closing price quoted or the principal exchange on which the Common Stock is listed, without duplication: (i) Taxes imposed on or payable by whichever is applicable, as published in the Company or any Subsidiary Eastern Edition of The Wall Street Journal for any Pre-Closing Tax Period, except the ten trading days prior to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (ii) Taxes imposed on the Company or any Subsidiary as a result date of the Company or any Subsidiary being included in an Affiliated Group that files consolidated or combined returns by reason determination of U.S. Treasury Regulation Section 1.1502-6 or any comparable provision of state, local or foreign law, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (iii) with respect to Straddle Periods, Taxes imposed on or payable by the Company or any Subsidiary which are allocable to the Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; and (iv) Taxes imposed on or payable by the Company or any Subsidiary as a result of a breach of any representation or warranty set forth in Section 3.11 or this Section 5.12fair market value. Any such claim against the Escrow Fund shall be reduced by the amount of any Tax Benefit (as defined in Section 7.3(c)) realized with respect to such Taxes for which a claim against the Escrow Fund is being sought. In no event shall any matter, facts or circumstances pertaining to any item (or the amount thereof) set forth on or reflected in the Company's Statement, the Closing Balance Sheet, the Determination, the Final Closing Balance Sheet, the Preliminary Working Capital Amount or the Final Working Capital Amount which resulted in a post-closing adjustment to the Initial Merger Consideration pursuant to Section 2.9 hereof give rise to any claim by Parent on the Escrow Fund under this Section 5.12 or Article VII6.

Claims Against Escrow Fund. For (a) At any time or times prior to the Expiration Date (as defined below), the Buyer may make claims against the Escrow Fund for amounts due for indemnification under Section 10 of the Merger Agreement. The Buyer shall notify the Shareholder Representative and the Escrow Agent in writing of each such claim, including a period brief description of twenty-four (24) months the amount and nature of such claim. Each such notice delivered to the Escrow Agent by the Buyer shall contain a representation of the Buyer to the effect that the Buyer has delivered a copy of such notice to the Shareholder Representative prior to or simultaneously with its delivery to the Escrow Agent. In the event that the amount subject to the claim is unliquidated, the Buyer shall make a good faith estimate as to the amount of the claim for purposes of determining the portion of the Escrow Fund to be withheld by the Escrow Agent if such claim is not resolved or otherwise adjudicated by the Expiration Date. If the Shareholder Representative disputes such claim, the Shareholder Representative shall give written notice thereof to the Buyer and to the Escrow Agent within thirty days after the Closing Datedate the Buyer's notice of claim was delivered to the Shareholder Representative, Parent in which case the Escrow Agent shall be entitled continue to make a written claim against hold the Escrow Fund in accordance with the terms of this Agreement; otherwise, such claim shall be deemed to have been acknowledged to be payable from the Escrow Agreement for, without duplication: (i) Taxes imposed on or payable by the Company or any Subsidiary for any Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected Fund in the Final Working Capital Amount; (ii) Taxes imposed on the Company or any Subsidiary full amount thereof as a result of the Company or any Subsidiary being included in an Affiliated Group that files consolidated or combined returns by reason of U.S. Treasury Regulation Section 1.1502-6 or any comparable provision of state, local or foreign law, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; (iii) with respect to Straddle Periods, Taxes imposed on or payable by the Company or any Subsidiary which are allocable to the Pre-Closing Tax Period, except to the extent such Taxes have been accrued or reflected in the Final Working Capital Amount; and (iv) Taxes imposed on or payable by the Company or any Subsidiary as a result of a breach of any representation or warranty set forth in Section 3.11 or this Section 5.12. Any the claim and the Escrow Agent shall pay such claim against to the Escrow Fund shall be reduced by Buyer as soon as practicable after expiration of that thirty-day period. If the amount of any Tax Benefit (as defined in Section 7.3(c)) realized with respect to such Taxes for which a the claim against exceeds the aggregate value of the Escrow Fund is being soughtFund, the Escrow Agent shall have no liability or responsibility for any deficiency. In All claims paid out of the Escrow Shares shall be rounded to the nearest whole share. Under no event circumstances shall any matter, facts or circumstances pertaining to any item (the Shareholders or the amount thereof) set forth on or reflected in the Company's Statement, the Closing Balance Sheet, the Determination, the Final Closing Balance Sheet, the Preliminary Working Capital Amount or the Final Working Capital Amount which resulted in a post-closing adjustment Shareholder Representative have any right to the Initial Merger Consideration pursuant to Section 2.9 hereof give rise to any claim by Parent on substitute other property for the Escrow Fund under this Section 5.12 Shares or Article VIIto change the Agreed Share Value.