Common use of Disposition of Escrowed Funds Clause in Contracts

Disposition of Escrowed Funds. If an amount is payable to Purchaser pursuant to Section 1.04(c) of the Stock Purchase Agreement, Purchaser and the Principal Seller shall jointly give notice to Escrow Agent stating that the Adjusted Cash Consideration has been determined in accordance with Section 1.04 of the Stock Purchase Agreement and specifying the amount payable in cash to Purchaser. Immediately following the receipt of such notice, Escrow Agent shall pay to Purchaser the cash amount so specified from the Escrowed Cash, up to a maximum amount of [REDACTED]. From time to time on or before the [REDACTED] anniversary of the Closing Date (it being understood and agreed that, in accordance with Section 6 hereof and Section 7.05 of the Stock Purchase Agreement, further clarifications may be made after such [REDACTED] anniversary with respect to matters as to which notice of a Claim or prospective Claim has been made on or before such date), Purchaser may give notice (a “Notice”) to Principal Seller and Escrow Agent specifying in reasonable detail the nature and dollar amount of any claim (a “Claim”) that any Purchaser Indemnitee may have under Section 7.01(a) or Section 7.02 of the Stock Purchase Agreement. Each Purchaser Indemnitee may make more than one Claim with respect to any underlying state of facts. Following receipt of a Notice in accordance with Section 2(b), Principal Seller shall have 20 Business Days from the date the Escrow Agent receives the Notice to make such investigation of the Claim as Principal Seller deems necessary or desirable. For purposes of such investigation Purchaser shall, upon request, promptly make available to Principal Seller all the material information then in its possession relied upon by Purchaser to substantiate the Claim. If Principal Seller gives notice to Purchaser and Escrow Agent disputing any Claim (a “Counter Notice”) within 20 Business Days following receipt by Escrow Agent of the Notice regarding such Claim, such Claim shall be resolved as provided in Section 3(f). If no Counter Notice is received by Escrow Agent within such 20 Business Day period, then the dollar amount of damages claimed by Purchaser Indemnitee as set forth in the Notice given by Purchaser shall be deemed established for purposes of this Agreement and the Stock Purchase Agreement and, at the end of such 20 Business Day period, Escrow Agent shall pay to Purchaser on the next Business Day the dollar amount claimed in the Notice from (and only to the extent of) the Escrowed Funds in the manner provided in subsection (d) below. Escrow Agent shall not inquire into or consider whether a Claim complies with the requirements of the Stock Purchase Agreement. Any Escrowed Funds paid to Purchaser by Escrow Agent pursuant to Section 3(c) shall be paid first, from the Escrowed Cash, and, in the event insufficient Escrowed Cash is available to satisfy such Claim, in Escrowed Stock valued at the average of the closing trading prices of the Purchaser Common Stock (rounding to the nearest 1/1000 of a share), as such price is reported by the NYSE, for the 10 trading days ending on the trading day immediately preceding such payment to Purchaser. No Notice or Counter Notice shall be valid for the purposes hereof unless Purchaser, in the case of a Notice, and Principal Seller, in the case of a Counter Notice, in respect of any Claim undertakes in such Notice or Counter Notice, as the case may be, to pay all legal fees and out-of-pocket expenses incurred by the other party with respect to such Claim (and the enforcement of such other party’s rights under the Stock Purchase Agreement and this Agreement), together with interest thereon at a rate equal to the rate of interest from time to time announced publicly by Citibank, N.A., as its prime rate, calculated on the basis of the actual number of days elapsed divided by 365, from the date the Claim is made to the date of payment, in the event a court of competent jurisdiction makes an order in accordance with Section 3(f)(ii) in favor of such other party. Unless Purchaser otherwise consents, such fees, expenses and interest (in the case of Principal Seller) may not be paid out of the Escrowed Funds. If a Counter Notice is given with respect to a claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Purchaser and Principal Seller or (ii) an award, order or judgment of a court of competent jurisdiction. Escrow Agent shall act on such court order without further question. In the event funds transfer instructions are given (other than in writing at the time of execution of this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on the call-back schedule attached hereto (the “Call-Back Schedule”), and Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent. If the Escrow Agent is unable to contact of any of the authorized representatives identified in the Call-Back Schedule, the Escrow Agent is hereby authorized to seek confirmation of such instructions by a telephone call-back to any one or more of the executive officers of the parties hereto, (“Executive Officers”), which shall include the titles of Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, General Counsel and Senior Vice President, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of anyone purported to be such officer. Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Purchaser to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. Escrow Agent may apply any of the Escrowed Cash for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Agreement acknowledge that these security procedures are commercially reasonable.

Disposition of Escrowed Funds. If an amount is payable (a) Upon request by Seller, Buyer and Seller will jointly instruct the Escrow Company to Purchaser pursuant to Section 1.04(c) of the Stock Purchase Agreement, Purchaser and the Principal Seller shall jointly give notice to Escrow Agent stating that the Adjusted Cash Consideration has been determined in accordance with Section 1.04 of the Stock Purchase Agreement and specifying the amount payable in cash to Purchaser. Immediately following the receipt of such notice, Escrow Agent shall pay to Purchaser the cash amount so specified from PETsMART the Escrowed CashFunds, up or so much thereof as Seller in its discretion shall specify in its request to a maximum amount Buyer. (b) Upon Buyer's presentation of [REDACTED]. From time evidence reasonably satisfactory to time on or before the [REDACTED] anniversary of the Closing Date (it being understood and agreed that, in accordance with Section 6 hereof and Section 7.05 of the Stock Purchase Agreement, further clarifications may be made after such [REDACTED] anniversary Seller that PETsMART has setoff any amounts PETsMART alleges are owing with respect to matters as the PETsMART Claims against rent or other amounts due to which notice of a Claim or prospective Claim has been made on or before such date), Purchaser may give notice (a “Notice”) to Principal Seller and Escrow Agent specifying in reasonable detail the nature and dollar amount of any claim (a “Claim”) that any Purchaser Indemnitee may have under Section 7.01(a) or Section 7.02 of the Stock Purchase Agreement. Each Purchaser Indemnitee may make more than one Claim Buyer with respect to periods on or after Closing, Buyer and Seller will jointly instruct the Escrow Company to pay to Buyer a portion of the Escrowed Funds equal to the amount of such setoff. (c) Upon Seller's presentation to Buyer of evidence reasonably satisfactory to Buyer, acting in good faith, that any underlying state portion of facts. Following receipt the PETsMART Claims has been resolved, Buyer shall join with Seller in instructing the Escrow Company to pay to Seller the portion of a Notice the Escrowed Funds determined not to be owing to PETsMART with respect to the PETsMART Claims. (d) If any Escrowed Funds remain in accordance with Section 2(b), Principal Seller shall have 20 Business Days the possession of the Escrow Company on or after the date that is five business days prior to the date that is nine (9) months from the date Closing Date, then upon the request of Buyer or Seller to the other, the parties shall jointly instruct the Escrow Agent receives Company to commence an interpleader action under applicable law to determine the Notice person or persons entitled to make such investigation the Escrowed Funds and to deposit all remaining Escrowed Funds with the clerk of the Claim as Principal Seller deems necessary or desirable. For purposes of court in which such investigation Purchaser shall, upon request, promptly make available to Principal Seller all the material information then in its possession relied upon by Purchaser to substantiate the Claim. If Principal Seller gives notice to Purchaser and Escrow Agent disputing any Claim interpleading action is commenced. (a “Counter Notice”e) within 20 Business Days following receipt by Escrow Agent of the Notice regarding such Claim, such Claim shall be resolved as provided in Section 3(f). If no Counter Notice is received by Escrow Agent within such 20 Business Day period, then the dollar amount of damages claimed by Purchaser Indemnitee as set forth in the Notice given by Purchaser shall be deemed established for purposes of this Agreement and the Stock Purchase Agreement and, at the end of such 20 Business Day period, Escrow Agent shall pay to Purchaser on the next Business Day the dollar amount claimed in the Notice from (and only to the extent of) the Any Escrowed Funds in the manner provided in subsection possession of Escrow Company on that date which is nine (d9) below. Escrow Agent shall not inquire into or consider whether a Claim complies with months from the requirements of the Stock Purchase Agreement. Any Escrowed Funds paid to Purchaser by Escrow Agent pursuant to Section 3(c) Closing Date shall be paid first, from the Escrowed Cash, and, in the event insufficient Escrowed Cash is available by Escrow Company to satisfy such Claim, in Escrowed Stock valued at the average of the closing trading prices of the Purchaser Common Stock (rounding Buyer upon Buyer's request. Buyer shall apply any funds so paid to it pursuant to the nearest 1/1000 provisions of a share), as such price is reported by the NYSE, for the 10 trading days ending on the trading day immediately preceding such payment to Purchaser. No Notice or Counter Notice shall be valid for the purposes hereof unless Purchaser, in the case of a Notice, clauses (b) and Principal Seller, in the case of a Counter Notice, in respect of any Claim undertakes in such Notice or Counter Notice, as the case may be, to pay all legal fees and out-of-pocket expenses incurred by the other party with respect to such Claim (and the enforcement of such other party’s rights under the Stock Purchase Agreement and this Agreement), together with interest thereon at a rate equal to the rate of interest from time to time announced publicly by Citibank, N.A., as its prime rate, calculated on the basis of the actual number of days elapsed divided by 365, from the date the Claim is made to the date of payment, in the event a court of competent jurisdiction makes an order e) above in accordance with Section 3(f)(iithe provisions of the Purchase Agreement such that, promptly following settlement or other resolution of the PETsMART Claims, Buyer shall pay to Seller any funds distributed to Buyer hereunder other than those amounts determined (by agreement with PETsMART, by decision of any court or arbitrator with jurisdiction, or by Buyer acting in good faith and in a manner not inconsistent with its own handling of Common Area Charges, Insurance Costs and Real Estate Taxes payable under the PETsMART Lease following the Closing) in favor to have been owing to PETsMART on account of such other partythe PETsMART Claims. Unless Purchaser otherwise consents, such fees, expenses Buyer shall cooperate with Seller's attempts to contest the PETsMART Claims and interest (in the case of Principal Seller) may not be paid out to collect from PETsMART any setoff amounts for which Buyer received any portion of the Escrowed Funds. If a Counter Notice is given with respect Funds pursuant to a claimclause (b) above, Escrow Agent provided that Seller shall make payment with respect thereto only in accordance with (i) joint written instructions of Purchaser and Principal Seller or (ii) an award, order or judgment of a court of competent jurisdiction. Escrow Agent shall act on such court order without further question. In the event funds transfer instructions are given (other than in writing at the time of execution of this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on the call-back schedule attached hereto (the “Call-Back Schedule”), and Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent. If the Escrow Agent is unable to contact of any of the authorized representatives identified in the Call-Back Schedule, the Escrow Agent is hereby authorized to seek confirmation of such instructions by a telephone call-back to any one or more of the executive officers of the parties hereto, (“Executive Officers”), which shall include the titles of Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, General Counsel and Senior Vice President, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of anyone purported to be such officer. Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Purchaser to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. Escrow Agent may apply any of the Escrowed Cash reimburse Buyer for any payment order it executes using any such identifying numberamounts paid by Buyer to third parties in connection with such, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Agreement acknowledge that these security procedures are commercially reasonablecooperation.

Disposition of Escrowed Funds. (a) If an amount is payable to Purchaser Parent pursuant to Section 1.04(c1.4(c) of the Stock Purchase Agreement, Purchaser Parent and the Principal Seller shall jointly give notice to Escrow Agent stating that the Adjusted Cash Consideration has been determined in accordance with Section 1.04 1.4 of the Stock Purchase Agreement and specifying the euro amount payable in cash to PurchaserParent. Immediately following the receipt of such notice, Escrow Agent shall pay to Purchaser Parent the cash euro amount so specified from the Escrowed CashFunds, up to a maximum amount of [REDACTEDRedacted]. . (b) From time to time on or before the [REDACTEDRedacted] anniversary of the Closing Date (it being understood and agreed that, in accordance with Section 6 hereof and Section 7.05 8.5 of the Stock Purchase Agreement, further clarifications may be made after such [REDACTEDRedacted] anniversary with respect to matters as to which notice of a Claim or prospective Claim has been made on or before such date), Purchaser Parent may give notice (a “Notice”) to Principal Seller and Escrow Agent specifying in reasonable detail the nature and dollar euro amount of any claim (a “Claim”) that any Purchaser Indemnitee may have (x) under Section 7.01(a8.1(a) or Section 7.02 8.2 of the Stock Purchase Agreement, or (y) as a result of the occurrence of any of the following (which Seller hereby indemnifies each Purchaser Indemnitee against as fully as if such matters were set forth in Section 8.2 of the Purchase Agreement): (i) any recharacterization as salary of damages paid to Mr. Soumilliard pursuant to the Settlement Agreement between him and JCF Group SAS; (ii) any recharacterization as salary of fees paid to certain employees pursuant to the JCF Group Management Fee Plan; (iii) any obligation of the Company or any of the Subsidiaries at any time to withhold or account for any Taxes (in any jurisdiction) under Pay As You Earn or otherwise, together with any and all interest, penalties, additions to tax and additional amounts imposed (for example by reason of the grossing up of any payments made or of payments that ought to have been made) in relation to all and any emoluments, earnings or other benefits received or receivable by reason of employment including, for the avoidance of doubt, any amounts payable under or by reference to the 2003 JCF Group Management Fee Plan or in connection with the performance by an employee of duties in any jurisdiction and in respect of any liability that may arise due to any failure to observe or comply with the directions, rules or concessions of any tax or social security authority; and (iv) any damages arising to Purchaser or Parent in connection with the domiciliation arrangements listed in Schedule 3.8 of the Purchase Agreement relating to the 43 rue La Fayette address of JCF Group SAS prior to termination of such arrangements in accordance with Section 5.9(c) of the Purchase Agreement. No Claim may be made in respect of any item set forth in clauses (i) to (iv) above unless such Claim is in an amount that exceeds the amount set forth in Section 8.2(b)(ii) of the Purchase Agreement. The limitation set forth in Section 8.2(b)(i) of the Purchase Agreement shall not apply to any item set forth in clauses (i) to (iv) above, and any payment made hereunder in respect of any item set forth in clauses (i) to (iv) above shall not be considered for purposes of calculating the aggregate Losses incurred for purposes of such Section 8.2(b)(i). Each Purchaser Indemnitee may make more than one Claim with respect to any underlying state of facts. Following receipt Table of a Notice in accordance with Section 2(b), Principal Seller shall have 20 Business Days from the date the Escrow Agent receives the Notice to make such investigation of the Claim as Principal Seller deems necessary or desirable. For purposes of such investigation Purchaser shall, upon request, promptly make available to Principal Seller all the material information then in its possession relied upon by Purchaser to substantiate the Claim. Contents (c) If Principal Seller gives notice to Purchaser Parent and Escrow Agent disputing any Claim (a “Counter Notice”) within 20 10 Business Days following receipt by Escrow Agent of the Notice regarding such Claim, such Claim shall be resolved as provided in Section 3(f3(e). If no Counter Notice is received by Escrow Agent within such 20 10 Business Day period, then the dollar euro amount of damages claimed by Purchaser Indemnitee as set forth in the Notice given by Purchaser Parent shall be deemed established for purposes of this Agreement and the Stock Purchase Agreement and, at the end of such 20 10 Business Day period, Escrow Agent shall pay to Purchaser Parent on the next Business Day the dollar euro amount claimed in the Notice from (and only to the extent of) the Escrowed Funds in the manner provided in subsection (d) belowFunds. Escrow Agent shall not inquire into or consider whether a Claim complies with the requirements of the Stock Purchase Agreement. Any Escrowed Funds paid to Purchaser by Escrow Agent pursuant to Section 3(c. (d) shall be paid first, from the Escrowed Cash, and, in the event insufficient Escrowed Cash is available to satisfy such Claim, in Escrowed Stock valued at the average of the closing trading prices of the Purchaser Common Stock (rounding to the nearest 1/1000 of a share), as such price is reported by the NYSE, for the 10 trading days ending on the trading day immediately preceding such payment to Purchaser. No Notice or Counter Notice shall be valid for the purposes hereof unless PurchaserParent, in the case of a Notice, and Principal Seller, in the case of a Counter Notice, in respect of any Claim undertakes in such Notice or Counter Notice, as the case may be, to pay all legal fees and out-of-pocket expenses incurred by the other party with respect to such Claim (and the enforcement of such other party’s rights under the Stock Purchase Agreement and this Agreement), together with interest thereon at a rate equal to the rate of interest from time to time announced publicly by Citibank, N.A., as its prime rate, calculated on the basis of the actual number of days elapsed divided by 365, from the date the Claim is made to the date of payment, in the event a court of competent jurisdiction makes an order in accordance with Section 3(f)(ii3(e)(ii) in favor of such other party. Unless Purchaser Parent otherwise consents, such fees, expenses and interest (in the case of Principal Seller) may not be paid out of the Escrowed Funds. . (e) If a Counter Notice is given with respect to a claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Purchaser Parent and Principal Seller or (ii) an award, order or judgment of a court of competent jurisdiction. Escrow Agent shall act on such court order without further question. . (f) In the event funds transfer instructions are given (other than in writing at the time of execution of this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on the call-back schedule attached hereto (the “Call-Back Schedule”)Schedule 1 hereto, and Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent. If the Escrow Agent is unable to contact of any of the authorized representatives identified in the Call-Back Schedule, the Escrow Agent is hereby authorized to seek confirmation of such instructions by a telephone call-back to any one or more of the executive officers of the parties hereto, (“Executive Officers”), which shall include the titles of Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, General Counsel and Senior Vice President, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of anyone purported to be such officer. Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Purchaser Parent to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. Escrow Agent may apply any of the Escrowed Cash Funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Agreement acknowledge that these security procedures are commercially reasonable.

Disposition of Escrowed Funds. If an amount is payable to Purchaser pursuant to Section 1.04(c(a) Each of the Stock Purchase AgreementBuyer and Sellers' Representatives shall only make claims for payment out of a Seller's Escrowed Funds, Purchaser and the Principal Seller shall jointly give notice to Escrow Agent stating that the Adjusted Cash Consideration has been determined in accordance with Section 1.04 of the Stock Purchase Agreement and specifying the amount payable in cash to Purchaser. Immediately following the receipt of such notice, Escrow Agent shall pay to Purchaser the cash amount so specified from the only make payment out of a Seller's Escrowed Cash, up to a maximum amount of [REDACTED]. From time to time on or before the [REDACTED] anniversary of the Closing Date (it being understood and agreed thatFunds, in accordance with the following procedures and under the following circumstances: (i) In the event that Buyer determines, from time to time, that a Buyer Indemnified Party (as defined in Section 6 hereof and Section 7.05 8(b)) is entitled to indemnification pursuant to Sections 10.01, 10.02 or 10.03 of the Stock Purchase Agreement, further clarifications may Buyer shall, if such indemnification is pursuant to Section 10.03 of the Purchase Agreement (other than Section 10.03(a)(iii) or (iv) of the Purchase Agreement), and may, if such indemnification is pursuant to Sections 10.01, 10.02 or 10.03(a)(iii) or (iv) of the Purchase Agreement, deliver simultaneously to the Escrow Agent and Sellers' Representatives a written notice signed by Buyer (A) certifying that a Buyer Indemnified Party is entitled to indemnification pursuant to the Purchase Agreement, (B) indicating the amount of indemnification to which such Buyer Indemnified Party is entitled, (C) indicating the Sub-Accounts, and the allocation thereof, from which payment should be made, (D) indicating the account of such Buyer Indemnified Party to which payment shall be made after and (E) directing the Escrow Agent to deliver payment to the Buyer Indemnified Party from the applicable Seller's Escrowed Funds (an "Indemnification Claim" (and shall contain a statement to that effect)). The notice of claim shall only be based on a good faith belief that such [REDACTED] anniversary with respect to matters claim is valid and shall provide reasonable detail as to the nature of such claim and the facts that serve as a basis therefor. All Indemnification Claims shall be allocated to each Sub-Account in the amounts indicated in subsection (C). Each Indemnification Claim shall be allocated pro rata among all of the Sub-Accounts, unless the Indemnification Claim arises out of Section 10.02 of the Purchase Agreement, in which case the Indemnification Claim shall be allocated to the Sub-Account or pro rata among the Sub-Accounts of the person or persons whose breach of the Purchase Agreement gave rise to the Indemnification Claim. In no event shall the Escrow Agent remove from a Sub-Account any amounts in excess of the amount allocated thereto pursuant to the previous sentence. (A) Upon the receipt by the Escrow Agent of an Indemnification Claim (the "Claim Receipt Date"), the Escrow Agent shall promptly thereafter deliver to Buyer from the Escrowed Funds the amount set forth in such Indemnification Claim, unless: (1) prior to the expiration of 40 days after the Claim Receipt Date, the Escrow Agent shall have received written notice from the Sellers' Representatives, a copy of which shall be forwarded by the Sellers' Representatives to the Buyer simultaneously with the forwarding thereof to the Escrow Agent, that Sellers' Representatives elect to contest all or a portion of such Indemnification Claim; or (2) prior to the expiration of 40 days after the Claim or prospective Receipt Date, the Escrow Agent shall have received written notice from the Buyer that such Indemnification Claim has been made on or before such date), Purchaser may give notice satisfied other than through operation of this Escrow Agreement (a “Notice”) to Principal Seller and Escrow Agent specifying at which point the amounts identified in reasonable detail the nature and dollar Indemnification Claim will no longer be subtracted from the amount of any claim the Cash Account in calculating the Available Cash Amount). (a “Claim”B) that any Purchaser Indemnitee may If Sellers' Representatives have under Section 7.01(a) or Section 7.02 of the Stock Purchase Agreement. Each Purchaser Indemnitee may make more than one Claim filed with respect to any underlying state of facts. Following receipt of a Notice in accordance with Section 2(b), Principal Seller shall have 20 Business Days from the date the Escrow Agent receives the Notice a written notification pursuant to make such investigation of the Claim as Principal Seller deems necessary or desirable. For purposes of such investigation Purchaser shall, upon request, promptly make available to Principal Seller all the material information then in its possession relied upon by Purchaser to substantiate the Claim. If Principal Seller gives notice to Purchaser and Escrow Agent disputing any Claim (a “Counter Notice”Section 2(a)(ii)(A)(1) within 20 Business Days following receipt by Escrow Agent of the Notice regarding such Claim, such Claim shall be resolved as provided in Section 3(f). If no Counter Notice is received by Escrow Agent within such 20 Business Day periodhereof, then the dollar Escrow Agent shall thereafter deliver to Buyer (1) any uncontested amount of damages claimed by Purchaser Indemnitee as set forth in the Notice given by Purchaser shall be deemed established for purposes of this Agreement and the Stock Purchase Agreement and, at the end of such 20 Business Day period, Escrow Agent shall pay to Purchaser on the next Business Day the dollar amount claimed in the Notice Indemnification Claim from (and only to the extent of) the Escrowed Funds in accordance with the manner provided provisions of Section 2(a)(iii) and Section 2(a)(iv), and (2) the contested amount set forth in subsection such Indemnification Claim from the Escrowed Funds, in each case only in accordance with either: (di) joint written instructions signed by Buyer and Sellers' Representatives and received by the Escrow Agent; or (ii) the provisions of Section 2(a)(vi) below. (iii) Subject to the provisions of Sections 2(a)(i) and 2(a)(ii), the Escrow Agent shall make payment in respect of an Indemnification Claim from the applicable Seller's Escrowed Funds in the following amounts and in the following order of priority: (A) first, from such Seller's Available Cash Amount, cash in an amount equal to the lesser of (x) the amount allocated to such Seller's Sub-Account in accordance with the last two sentences of Section 2(a)(i) and (y) such Seller's Available Cash Amount; and (B) second, if and to the extent such Indemnification Claim is not satisfied in its entirety by the payment out of such Seller's Available Cash Amount pursuant to clause (A) of this Section 2(a)(iii), from such Seller's Available Stock Amount, that number of shares of Common Stock having a value (based on the Agreed Price, as defined below) equal to the lesser of (x) the amount allocated to such Seller's Sub-Account in accordance with the last two sentences of Section 2(a)(i) less any amount paid out of such Seller's Available Cash Amount pursuant to clause (A) of Section 2(a)(iii), and (y) the value of such Seller's Available Stock Amount (based on the Agreed Price). For the avoidance of doubt, the Escrow Agent shall not inquire into or consider whether be authorized to make payment to Buyer from a Claim complies with Seller's Available Stock Amount until no funds remain available in a Seller's Available Cash Amount. (iv) Payments made by the requirements of the Stock Purchase Agreement. Any Escrowed Funds paid to Purchaser by Escrow Agent in cash from a Seller's Available Cash Amount pursuant to Section 3(c2(a)(iii)(A) or Section 2(a)(vi) shall be paid first, from the Escrowed Cash, and, made in the event insufficient Escrowed Cash is available form of a wire transfer to satisfy such the account of the Buyer Indemnified Party specified in the Indemnification Claim, or the Enforcing Party (as defined below) specified in Escrowed the Judicial Claim (as defined below), to which such payment relates. Payments made by the Escrow Agent in stock from a Seller's Available Stock Amount pursuant to Section 2(a)(iii)(B) or Section 2(a)(vi) shall be made by (A) Buyer's receipt of the applicable deposited certificates for the Available Stock Amount, (B) Buyer's presenting to the Escrow Agent replacement certificates for each Seller's remaining Available Stock Amount and (C) Buyer's stock transfer to the account of, and in the name of, the Buyer Indemnified Party specified in the Indemnification Claim, or the Enforcing Party specified in the Judicial Claim, to which such payment relates. (v) The shares of Common Stock placed in escrow hereunder shall, for all purposes of this Escrow Agreement, be valued at $26.50 per share (the average "Agreed Price"). For the avoidance of doubt, to the closing trading prices extent a claim is made against a Seller's Available Stock Amount, the amount of shares to be withdrawn from such Available Stock Amount by any Buyer Indemnified Party will be determined on the Purchaser basis that one share of Common Stock (rounding to the nearest 1/1000 of has a share), as such price is reported by the NYSE, for the 10 trading days ending on the trading day immediately preceding such payment to Purchaser. No Notice or Counter Notice shall be valid for the purposes hereof unless Purchaser, in the case of a Notice, and Principal Seller, in the case of a Counter Notice, in respect of any Claim undertakes in such Notice or Counter Notice, as the case may be, to pay all legal fees and out-of-pocket expenses incurred by the other party with respect to such Claim (and the enforcement of such other party’s rights under the Stock Purchase Agreement and this Agreement), together with interest thereon at a rate value equal to the rate of interest from time to time announced publicly by Citibank, N.A., as its prime rate, calculated on Agreed Price. In the basis event that upon the application of the actual Agreed Price to the Available Stock Amount hereunder, a fractional number of days elapsed divided shares are to be so transferred, the number of shares to be so transferred will be determined by 365, from the date the Claim is made rounding down to the date next whole number of payment, in shares to be withdrawn from such Available Stock Amount. (vi) In the event a court of competent jurisdiction makes an has issued a final and nonappealable award or order in accordance with Section 3(f)(iirequiring payment of all or any portion of a Seller's Escrowed Funds to a Seller or a Buyer Indemnified Party, the party hereto entitled to enforce such award or order (the "Enforcing Party") in favor shall promptly deliver to the Escrow Agent and the other parties hereto a written notice (A) attaching such award or order, (B) indicating the account of such other partythe Enforcing Party to which payment shall be made, (C) indicating the Sub-Accounts from which the court has ordered that payment shall be made, and (D) directing the Escrow Agent to deliver payment to the Enforcing Party from the Escrowed Funds (a "Judicial Claim"). Unless Purchaser otherwise consents, such fees, expenses and interest (All Judicial Claims shall be allocated to each Sub-Account as set forth in the case of Principal Seller) may not be paid out of court's order; provided that if no allocation is set forth in the Escrowed Funds. If a Counter Notice is given court order made with respect to a claimJudicial Claim, such Judicial Claim shall be allocated pro rata (based on relative values of the Sub-Accounts at the time of the establishment of the escrow under this Escrow Agreement) among all of the Sub-Accounts, unless the Judicial Claim arises out of Section 10.02 of the Purchase Agreement, in which case the Judicial Claim shall be allocated to the Sub-Account or pro rata (based on relative values of the Sub-Accounts at the time of the establishment of the escrow under this Escrow Agreement) among the Sub-Accounts of the person or persons whose breach of the Purchase Agreement gave rise to the Judicial Claim. In no event shall the Escrow Agent remove from a Sub-Account any amounts in excess of the amount allocated thereto pursuant to the previous sentence. The Escrow Agent shall as promptly as reasonably practicable after the receipt of a Judicial Claim (but in no event later than five business days after such receipt) make payment with respect thereto only to the Enforcing Party from the applicable Seller's Escrowed Funds in the priority described in Section 2(a)(iii) and in accordance with the provisions of Section 2(a)(iv), except that if a Seller is an Enforcing Party, Buyer shall present to the Escrow Agent all necessary replacement certificates including certificates deliverable to any Seller as an Enforcing Party. (ivii) joint written instructions of Purchaser Unless otherwise directed in a writing jointly signed by Sellers' Representatives and Principal Seller Buyer or (ii) an award, order or judgment of by a court of competent jurisdiction. Escrow Agent shall act on such court order without further question. In , as promptly as reasonably practicable after the day that is 12 months after the date hereof, but in no event funds transfer instructions are given (other later than in writing at five business days after the time of execution of this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent day that is authorized to seek confirmation of such instructions by telephone call-back to 12 months after the person or persons designated on the call-back schedule attached hereto (the “Call-Back Schedule”), and Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent. If the Escrow Agent is unable to contact of any of the authorized representatives identified in the Call-Back Scheduledate hereof, the Escrow Agent shall deliver to Sellers' Representatives an aggregate amount that is hereby authorized equal to seek confirmation the excess, if any, of such instructions by (A) all Available Cash Amounts plus all Available Stock Amounts (valued on a telephone call-back to any one or more per share basis at the Agreed Price), over (B) 50% of the executive officers Cash Amount plus 50% of the parties heretoStock Amount (valued on a per share basis at the Agreed Price). Payment under this Section 2(a)(vii) shall be made by (x) a wire transfer to the accounts designated in writing by Sellers' Representatives of the cash to be withdrawn from all Available Cash Amounts and (y) delivery of the shares of Common Stock to be withdrawn from all Available Stock Amounts to, and in the name of, the persons designated in writing by Sellers' Representatives. (“Executive Officers”)viii) Unless otherwise directed, which shall include in each case prior to the titles Cut-Off Time (as defined below) in a writing signed by Sellers' Representatives and Buyer in the case of Chief Executive Officeran Indemnification Claim, President, Chief Operating Officer, Chief Financial Officer, General Counsel and Senior Vice Presidentor by the Enforcing Party in the event of a Judicial Claim, as promptly as reasonably practicable after the Cut-Off Time, but in no event later than five business days after the Cut-Off Time, the Escrow Agent may select. Such Executive Officer shall deliver to Sellers' Representatives an aggregate amount (the "Cut-Off Payment") equal to all Available Cash Amounts and all Available Stock Amounts. Payment under this Section 2(a)(viii) shall be made by (x) a wire transfer to the accounts designated in writing by Sellers' Representatives of the cash to be withdrawn from all Sellers' Available Cash Amounts and (y) delivery of an amount of shares of Common Stock to be withdrawn from all Available Stock Amounts to, and in the name of, the persons designated in writing by Sellers' Representatives. (ix) The Buyer Indemnified Parties may not seek directly from Sellers any portion of an unsatisfied Indemnification Claim resulting from the market price of the Common Stock being below the Agreed Price. Without limiting the foregoing, as a condition precedent to Buyer making any Indemnification Claim hereunder for the indemnification of any Buyer Indemnified Party other than the Buyer and its subsidiaries, such Buyer Indemnified Party shall agree in writing to be bound by the foregoing sentence. (x) Notwithstanding the foregoing, the Escrow Agent shall not make any payment in respect of an Indemnification Claim or Judicial Claim that it receives after 5:00 p.m. New York City time on the day that is 24 months after the date hereof, if such day is a fully executed Incumbency Certificatebusiness day, and or if such day is not a business day, the next business day thereafter (such time, the "Cut-Off Time"). (xi) The Escrow Agent may rely upon shall continue to hold and administer, pursuant to the confirmation of anyone purported to be such officer. Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Purchaser to identify (i) the beneficiaryterms hereof, (ii) the beneficiary’s bank, or (iii) an intermediary bank. Escrow Agent may apply any of the Escrowed Cash for any Funds retained by the Escrow Agent following payment order it executes using any of the Cut-Off Payment until the final disposition of all pending Indemnification Claims and Judicial Claims in accordance with Section 2 of this Agreement. Upon final disposition of all such identifying numberpending Indemnification Claims and Judicial Claims pursuant to Section 2, even when its use may result in a person other than the beneficiary being paid, or Escrow Agent shall then distribute to Sellers the transfer remainder of funds the Escrow Funds pursuant to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Agreement acknowledge that these security procedures are commercially reasonableSection 2(a)(viii) hereof.

Disposition of Escrowed Funds. If an amount is payable to Purchaser pursuant to Section 1.04(c(a) Each of the Stock Purchase AgreementBuyer and Sellers' Representatives shall only make claims for payment out of a Seller's Escrowed Funds, Purchaser and the Principal Seller shall jointly give notice to Escrow Agent stating that the Adjusted Cash Consideration has been determined in accordance with Section 1.04 of the Stock Purchase Agreement and specifying the amount payable in cash to Purchaser. Immediately following the receipt of such notice, Escrow Agent shall pay to Purchaser the cash amount so specified from the only make payment out of a Seller's Escrowed Cash, up to a maximum amount of [REDACTED]. From time to time on or before the [REDACTED] anniversary of the Closing Date (it being understood and agreed thatFunds, in accordance with the following procedures and under the following circumstances: (i) In the event that Buyer determines, from time to time, that a Buyer Indemnified Party (as defined in Section 6 hereof and Section 7.05 8(b)) is entitled to indemnification pursuant to Sections 10.01, 10.02 or 10.03 of the Stock Purchase Agreement, further clarifications may be made after such [REDACTED] anniversary with respect to matters as to which notice of a Claim or prospective Claim has been made on or before such date), Purchaser may give notice (a “Notice”) to Principal Seller and Escrow Agent specifying in reasonable detail the nature and dollar amount of any claim (a “Claim”) that any Purchaser Indemnitee may have under Section 7.01(a) or Section 7.02 of the Stock Purchase Agreement. Each Purchaser Indemnitee may make more than one Claim with respect to any underlying state of facts. Following receipt of a Notice in accordance with Section 2(b), Principal Seller shall have 20 Business Days from the date the Escrow Agent receives the Notice to make such investigation of the Claim as Principal Seller deems necessary or desirable. For purposes of such investigation Purchaser Buyer shall, upon request, promptly make available to Principal Seller all the material information then in its possession relied upon by Purchaser to substantiate the Claim. If Principal Seller gives notice to Purchaser and Escrow Agent disputing any Claim (a “Counter Notice”) within 20 Business Days following receipt by Escrow Agent of the Notice regarding if such Claim, such Claim shall be resolved as provided in Section 3(f). If no Counter Notice indemnification is received by Escrow Agent within such 20 Business Day period, then the dollar amount of damages claimed by Purchaser Indemnitee as set forth in the Notice given by Purchaser shall be deemed established for purposes of this Agreement and the Stock Purchase Agreement and, at the end of such 20 Business Day period, Escrow Agent shall pay to Purchaser on the next Business Day the dollar amount claimed in the Notice from (and only to the extent of) the Escrowed Funds in the manner provided in subsection (d) below. Escrow Agent shall not inquire into or consider whether a Claim complies with the requirements of the Stock Purchase Agreement. Any Escrowed Funds paid to Purchaser by Escrow Agent pursuant to Section 3(c) shall be paid first, from the Escrowed Cash, and, in the event insufficient Escrowed Cash is available to satisfy such Claim, in Escrowed Stock valued at the average 10.03 of the closing trading prices Purchase Agreement (other than Section 10.03(a)(iii) or (iv) of the Purchaser Common Stock (rounding to the nearest 1/1000 of a share), as such price is reported by the NYSE, for the 10 trading days ending on the trading day immediately preceding such payment to Purchaser. No Notice or Counter Notice shall be valid for the purposes hereof unless Purchaser, in the case of a Notice, and Principal Seller, in the case of a Counter Notice, in respect of any Claim undertakes in such Notice or Counter Notice, as the case may be, to pay all legal fees and out-of-pocket expenses incurred by the other party with respect to such Claim (and the enforcement of such other party’s rights under the Stock Purchase Agreement and this Agreement), together with interest thereon at a rate equal and may, if such indemnification is pursuant to the rate of interest from time to time announced publicly by CitibankSections 10.01, N.A., as its prime rate, calculated on the basis 10.02 or 10.03(a)(iii) or (iv) of the actual number of days elapsed divided by 365Purchase Agreement, from the date the Claim is made to the date of payment, in the event a court of competent jurisdiction makes an order in accordance with Section 3(f)(ii) in favor of such other party. Unless Purchaser otherwise consents, such fees, expenses and interest (in the case of Principal Seller) may not be paid out of the Escrowed Funds. If a Counter Notice is given with respect to a claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Purchaser and Principal Seller or (ii) an award, order or judgment of a court of competent jurisdiction. Escrow Agent shall act on such court order without further question. In the event funds transfer instructions are given (other than in writing at the time of execution of this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on the call-back schedule attached hereto (the “Call-Back Schedule”), and Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent. If the Escrow Agent is unable to contact of any of the authorized representatives identified in the Call-Back Schedule, the Escrow Agent is hereby authorized to seek confirmation of such instructions by a telephone call-back to any one or more of the executive officers of the parties hereto, (“Executive Officers”), which shall include the titles of Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, General Counsel and Senior Vice President, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent and Sellers' Representatives a fully executed Incumbency Certificatewritten notice signed by Buyer (A) certifying that a Buyer Indemnified Party is entitled to indemnification pursuant to the Purchase Agreement, (B) indicating the amount of indemnification to which such Buyer Indemnified Party is entitled, (C) indicating the Sub-Accounts, and the allocation thereof, from which payment should be made, (D) indicating the account of such Buyer Indemnified Party to which payment shall be made and (E) directing the Escrow Agent may rely upon to deliver payment to the confirmation Buyer Indemnified Party from the applicable Seller's Escrowed Funds (an "Indemnification Claim"). The notice of anyone purported claim shall only be based on a good faith belief that such claim is valid and shall provide reasonable detail as to the nature of such claim and the facts that serve as a basis therefor. All Indemnification Claims shall be such officerallocated to each Sub-Account in the amounts indicated in subsection (C). Each Indemnification Claim shall be allocated pro rata among all of the Sub-Accounts, unless the Indemnification Claim arises out of Section 10.02 of the Purchase Agreement, in which case the Indemnification Claim shall be allocated to the Sub-Account or pro rata among the Sub-Accounts of the Person or Persons whose breach of the Purchase Agreement gave rise to the Indemnification Claim. In no event shall the Escrow Agent and remove from a Sub-Account any amounts in excess of the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Purchaser amount allocated thereto pursuant to identify (i) the beneficiary, previous sentence. (ii) (A) Within 45 days after the beneficiary’s bank, or (iii) an intermediary bank. date of receipt by the Escrow Agent may apply any of an Indemnification Claim (the "Claim Receipt Date"), the Escrow Agent shall deliver to Buyer from the Escrowed Cash for any payment order it executes using any Funds the amount set forth in such identifying numberIndemnification Claim, even when its use may result in unless: (1) prior to the expiration of 40 days after the Claim Receipt Date, the Escrow Agent shall have received written notice from the Sellers' Representatives, a person copy of which shall be forwarded by the Sellers' Representatives to the Buyer simultaneously with the forwarding thereof to the Escrow Agent, that Sellers' Representatives elect to contest all or a portion of such Indemnification Claim; or (2) prior to the expiration of 40 days after the Claim Receipt Date, the Escrow Agent shall have received written notice from the Buyer that such Indemnification Claim has been satisfied other than the beneficiary being paid, or the transfer through operation of funds to a bank other than the beneficiary’s bank or an intermediary bank designated. The parties to this Agreement acknowledge that these security procedures are commercially reasonableEscrow Agreement.