Common use of Disbursements of Escrow Funds Clause in Contracts

Disbursements of Escrow Funds. (a) Subject to the terms set forth in the Underlying Agreement and in this Agreement, the Escrow Fund shall be available to Depositor, acting on its own behalf and on behalf of the Acquisition Sub, to satisfy the indemnification obligations of the Recipient arising out of Section 9.2.1 of the Underlying Agreement at any time up to the time of the Escrow Release Date and from time to time in accordance with the terms of the Underlying Agreement and this Agreement. If Depositor makes any claim on behalf of any party entitled to indemnification pursuant to the Underlying Agreement (each such party, an "Indemnified Party") against any party or parties against whom indemnification may be sought by such Indemnified Party under the Underlying Agreement (each such party against whom indemnification may be sought, an "Indemnifying Party"), Depositor shall give written notice to the Indemnifying Party and the Escrow Agent in accordance with the notice provisions of the Underlying Agreement and this Agreement (a "Claim Notice"), which Claim Notice shall (A) describe in reasonable detail the facts upon which Depositor, on behalf of the Indemnified Party(ies), makes such claim and state that the Indemnified Party(ies) have made a reasonable estimate of Losses, including the calculation thereof (as defined in Section 9.2.1 of the Underlying Agreement), subject to the indemnification obligations of the Indemnifying Party under Section 9 of the Underlying Agreement, (B) state that the Indemnified Party seeks payment from the Escrow Fund to satisfy the payment of such Losses, and (C) specify the number of Escrow Shares that Depositor has determined shall be released from the Escrow Fund to Depositor, on behalf of the Indemnified Party(ies) in connection with such claim (a "Claim"). As set forth in Section 9.4.2 of the Underlying Agreement, the average closing bid price per share of the SafeNet Common Stock on the NNM for the five trading days ending on the trading day immediately preceding the Closing (as defined in the Underlying Agreement) shall be used in determining the value of the Escrow Shares for indemnification purposes.

Disbursements of Escrow Funds. (a) Subject to the terms set forth in the Underlying Agreement and in this Agreement, the The Escrow Fund Funds shall be available to Depositor, acting on its own behalf and on behalf of the Acquisition Sub, to satisfy the indemnification obligations of the Recipient arising out of Section 9.2.1 of the Underlying Agreement at any time up to the time of the Escrow Release Date and from time to time in accordance with the terms of the Underlying Agreement and this Agreement. If Depositor makes any claim on behalf of any party entitled to indemnification pursuant to the Underlying Agreement (each such party, an "Indemnified Party") against any party or parties against whom indemnification may be sought distributed by such Indemnified Party under the Underlying Agreement (each such party against whom indemnification may be sought, an "Indemnifying Party"), Depositor shall give written notice to the Indemnifying Party and the Escrow Agent in accordance with the notice provisions of following: (a) If, prior to the Closing, the Underlying Agreement is terminated by the Sellers pursuant to Section 7.01(d) thereof, Sellers’ Representative may deliver to Escrow Agent a written notice (“Sellers’ Representative Notice”) that (i) states that the Underlying Agreement was terminated pursuant to Section 7.01(d) thereof, as applicable, (ii) states that Sellers are entitled to $15,000,000 of the Escrow Funds, as well as any interest and any other income earned on such $15,000,000, and that Iconix is entitled to the balance of the Escrow Funds (such balance, the “Indemnification Funds”) and (iii) requests that Escrow Agent disburse such portion of the Escrow Funds to Sellers, and such portion to Iconix in the manner indicated in such notice (any Sellers’ Representative Notice pursuant to this Agreement Section 4.4(a) shall be accompanied by a certification that a copy of such notice has been given to Iconix). If Iconix does not dispute such Sellers’ Representative Notice in writing to Sellers’ Representative and Escrow Agent within five (5) Business Days of Iconix’ receipt (as provided in Section 15 below) of a "copy of such notice, then the Escrow Agent shall release such amount to Sellers’ Representative and Iconix within ten (10) Business Days after the receipt of such Sellers’ Representative Notice, as instructed. However, if Iconix timely objects to such Sellers’ Representative Notice in writing as provided in the immediately preceding sentence, Escrow Agent shall not disburse any amount except in accordance with Section 4(e) below. Iconix and Sellers’ Representative agree that any Claim Notice"), which Claim or objection to or dispute with Sellers’ Representative Notice shall be made and asserted in good faith. (Ab) describe in reasonable detail On the facts upon which Depositor, on behalf date of the Indemnified Party(ies)Closing, makes such claim Sellers’ Representative and state Iconix shall deliver to Escrow Agent a joint written notice which (i) states that the Indemnified Party(ies) have made a reasonable estimate of Losses, including the calculation thereof (as defined in Section 9.2.1 of the Underlying Agreement), subject Closing has occurred pursuant to the indemnification obligations of the Indemnifying Party under Section 9 of the Underlying Agreement, (Bii) state states that the Indemnified Party seeks payment from Sellers are entitled to $15,000,000 of the Escrow Fund to satisfy the payment of Funds, as well as any interest and any other income earned on such Losses$15,000,000, and (Ciii) specify requests that Escrow Agent disburse such portion of the number Escrow Funds to Sellers Representative and that the remaining Escrow Funds shall remain in escrow for a period of Escrow Shares that Depositor has determined shall be released twelve (12) months from the Escrow Fund Closing Date, subject to Depositor, on behalf of the Indemnified Party(ies) in connection with such claim (a "Claim"). As terms and conditions set forth in Section 9.4.2 4(c) below. (c) Upon the expiration of the Underlying Agreementfirst anniversary of the Closing Date, Escrow Agent shall: (a) retain in the Escrow Funds sufficient funds to pay in full all Claim Amounts, if any, that have not been resolved at such time; and (b) distribute, as promptly as practicable, the average closing bid price per share balance of the SafeNet Common Stock Escrow Funds to the Sellers in accordance with their respective Ownership Percentages; provided, that the distribution made to each Sellers against whom Iconix has asserted any Claim individually on or before such date which (i) has not been resolved at such time by the NNM for delivery to Escrow Agent of a Joint Written Direction or (ii) has resulted in payments made to Iconix pursuant to Section 5 herein shall be reduced by the five trading days ending on amount of any such Claim, as applicable, and the trading day immediately preceding distributions made to the Closing other Sellers shall be adjusted accordingly. (f) Except as provided in Section 4(c), all distributions of Escrow Funds to Sellers under Section 4 shall be distributed to each Seller in accordance with that Seller’s respective Ownership Percentage as set out in Schedule B hereto. (g) All distributions of funds from the Escrow Funds shall be subject to the fees and claims of Escrow Agent and the Indemnified Parties (as defined in the Underlying Agreementbelow) shall be used in determining the value of the Escrow Shares for indemnification purposespursuant to Section 10 and Section 11 below.

Disbursements of Escrow Funds. The Escrow Agent shall not distribute all or any portion of the Escrow Fund to any party, except in accordance with this Section 3.2. (a) Subject Either of Buyer Parties shall notify in writing each of the Escrow Agent and the Seller Parties of any Buyer claim for indemnification pursuant to the terms Purchase Agreement (a "Buyer Claim") in accordance with the notice provisions set forth in the Underlying Agreement and in Section 4.3 of this Agreement, specifying the alleged amount and basis thereof in detail. The Escrow Agent shall have no responsibility whatsoever to determine if a copy of such notice was sent or received by the Buyer Parties to the Seller Parties. (b) Upon any Buyer Claim permitting recovery from the Escrow Fund shall be available to Depositor, acting on its own behalf and on behalf of the Acquisition Sub, to satisfy the indemnification obligations of the Recipient arising out of Section 9.2.1 of the Underlying Agreement at any time up to the time of the Escrow Release Date and from time to time in accordance with the terms of the Underlying Purchase Agreement, the Escrow Agent shall: (i) if the Seller Parties shall, within thirty (30) days after their receipt of the claim notice, deliver to each of the Escrow Agent and the Buyer Parties a written notice that they object to such claim, setting forth in reasonable detail the basis of such objection, and if the Buyer Claim shall thereafter be submitted by the Buyer Parties to a judicial proceeding, then in such event upon receipt of a certificate from the Buyer Parties (A) attaching a copy of the award from such proceeding in a judgment which is non-appealable and final, specifying the amount of such recovery and (B) certifying that the Buyer Parties properly notified the Seller Parties of the Buyer Claim, as required by the Purchase Agreement and this Agreement. If Depositor makes any claim on behalf ; or (ii) in the case of any party entitled a Buyer Claim settled by written agreement among the Buyer Parties and the Seller Parties, upon receipt of a copy of such agreement, specifying the amount of recovery and authorizing release of such recovery; or (iii) in the case of a Buyer Claim where the Seller Parties fail to indemnification pursuant deliver to the Underlying Agreement Escrow Agent a written objection to the Buyer Claim within thirty (each such party30) days of the Escrow Agent's receipt of the claim notice, an "Indemnified Party") against any party or parties against whom indemnification may be sought by such Indemnified Party and Buyer has provided a certificate to the Escrow Agent certifying that Buyer has served the Seller Parties with proper notice under the Underlying Purchase Agreement (each such party against whom indemnification may be sought, and this Agreement; deliver to Buyer cash from the Escrow Fund in an "Indemnifying Party"amount consistent with the provisions of Section 3.2(b)(i), Depositor (ii) or (iii) hereof, as the case may be, and in accordance with written instructions from Buyer including wire instructions or an address to where a check should be sent. (c) Escrow Agent shall give release any remaining balance in the Escrow Account to Simtek immediately upon the expiration of twelve (12) months following the Closing Date, unless prior to such time Escrow Agent has received written notice (i) from one or both of Buyer Parties of a Buyer Claim which has not yet been satisfied hereunder, or (ii) from any of Buyer Parties or Seller Parties that there exists a dispute as to whether a Buyer Claim exists, in which case Escrow Agent, in its discretion, shall take either or both of the Indemnifying Party actions set forth in Section 2.4(a) and 2.4(b) hereof. (d) All distributions shall be made by the Escrow Agent in accordance with the notice provisions of the Underlying Agreement and this Agreement (a "Claim Notice"), which Claim Notice shall (A) describe in reasonable detail the facts upon which Depositor, on behalf of the Indemnified Party(ies), makes such claim and state that the Indemnified Party(ies) have made a reasonable estimate of Losses, including the calculation thereof (as defined in Section 9.2.1 of the Underlying Agreement), subject written instructions delivered to the indemnification obligations of the Indemnifying Party under Section 9 of the Underlying Agreement, (B) state that the Indemnified Party seeks payment from Escrow Agent and the Escrow Fund to satisfy Agent shall have no responsibility whatsoever for determining whether the payment of such Losses, and distribution is in accordance with the Purchase Agreement or satisfies the conditions set forth therein. (Ce) specify the number of Escrow Shares that Depositor has determined All distributions shall be released from made by federal funds wire transfer or by cashier's check, as elected by the Escrow Fund to Depositor, on behalf of party receiving the Indemnified Party(ies) in connection with such claim (a "Claim"). As set forth in Section 9.4.2 of the Underlying Agreement, the average closing bid price per share of the SafeNet Common Stock on the NNM for the five trading days ending on the trading day immediately preceding the Closing (as defined in the Underlying Agreement) shall be used in determining the value of the Escrow Shares for indemnification purposesdistribution.

Disbursements of Escrow Funds. a. If the Depositor is selected as the Winning Bidder under the terms of the Sale Procedures Order, then, upon the closing of the sale of the Purchased Assets to Depositor (athe “Closing”), Depositor and Recipient shall immediately sign a Joint Written Direction directing Escrow Agent to release to Recipient, all Escrow Funds to be applied against the amounts due from Depositor to Recipient at Closing. b. If the Depositor is not selected as either the Winning Bidder or the Back-Up Bidder under the terms of the Sale Procedures Order, then Depositor and Recipient shall immediately sign a Joint Written Direction directing Escrow Agent to release to Depositor all Escrow Funds within three (3) Subject business days following the conclusion or cancellation of the Auction. c. If Depositor is selected as the Back-Up Bidder under the terms of the Sale Procedures Order, and if Depositor is not thereafter selected as the Winning Bidder for purposes of closing the sale of the Purchased Assets, then notwithstanding anything to the terms set forth contrary in the Underlying Agreement Sale Procedures, Depositor and in this Agreement, the Recipient shall immediately sign a Joint Written Direction directing Escrow Fund shall be available Agent to Depositor, acting on its own behalf and on behalf release to Depositor all Escrow Funds within three (3) business days of the Acquisition Subearlier of (i) August 1, 2011 (provided that, if Recipient shall have provided written notice to satisfy Depositor of its selection as the indemnification obligations Winning Bidder within three (3) business days of the Recipient arising out of Section 9.2.1 August 1, 2011, then such date shall automatically be extended until August 15, 2011), (ii) termination of the Underlying Agreement at by Depositor for any time up reason other than a Purchaser Default Termination (as defined in the Underlying Agreement), or (iii) the closing of the sale of the Purchased Assets to the time Winning Bidder. d. Subject to Section 5, if Escrow Agent receives a certificate signed by Recipient stating that: (i) Recipient has delivered a copy of the Escrow Release Date such certificate to Depositor and from time to time in accordance with the terms of (ii) Recipient has terminated the Underlying Agreement and this Agreement. If Depositor makes any claim on behalf of any party entitled to indemnification pursuant to the Underlying Agreement (each such party, an "Indemnified Party") against any party or parties against whom indemnification may be sought by such Indemnified Party under the Underlying Agreement (each such party against whom indemnification may be sought, an "Indemnifying Party"), Depositor shall give written notice to the Indemnifying Party and the a Purchaser Default Termination Escrow Agent shall release to Recipient all Escrow Funds; provided, however that no Escrow Funds shall be disbursed if Depositor delivers a written objection to such Purchaser Default Termination, signed by an officer of Depositor and setting forth in reasonable detail the reasons for such objection to Escrow Agent within two (2) business days of receipt of notice thereof. e. Subject to Section 5, if Escrow Agent receives a certificate signed by Depositor stating that: (i) Depositor has delivered a copy of such certificate to Recipient in accordance with the notice provisions of the Underlying Agreement and this (ii) the Underlying Agreement (has been terminated for any reason other than a "Claim Notice")Purchaser Default Termination, which Claim Notice Escrow Agent shall (A) describe release to Depositor all Escrow Funds in reasonable detail accordance with, and subject to the facts upon which Depositorterms of, on behalf the Underlying Agreement. All disbursements of funds from the Escrow Funds shall be subject to the fees and claims of Escrow Agent and the Indemnified Party(ies), makes such claim and state that the Indemnified Party(ies) have made a reasonable estimate of Losses, including the calculation thereof Parties (as defined in below) pursuant to Section 9.2.1 of the Underlying Agreement), subject to the indemnification obligations of the Indemnifying Party under 10 and Section 9 of the Underlying Agreement, (B) state that the Indemnified Party seeks payment from the Escrow Fund to satisfy the payment of such Losses, and (C) specify the number of Escrow Shares that Depositor has determined shall be released from the Escrow Fund to Depositor, on behalf of the Indemnified Party(ies) in connection with such claim (a "Claim"). As set forth in Section 9.4.2 of the Underlying Agreement, the average closing bid price per share of the SafeNet Common Stock on the NNM for the five trading days ending on the trading day immediately preceding the Closing (as defined in the Underlying Agreement) shall be used in determining the value of the Escrow Shares for indemnification purposes11 below.