Common use of Distribution of Escrow Fund Clause in Contracts

Distribution of Escrow Fund. (i) Upon the Buyers becoming entitled to a distribution of all or a portion of the Escrow Fund pursuant to Section 2.3(d)(i), the Escrow Agent shall deliver (A) to the Buyers out of the Escrow Fund, Cash in an amount equal to the Aggregate Consideration Deficit, (B) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (C) to Sellers’ Representative any Cash remaining in the Escrow Fund after the payments in clauses (A) and (B) of this Section 2.4(b)(i) have been made. If the Aggregate Consideration Deficit is greater than the amount of Cash in the Escrow Fund (such excess, the “Escrow Cash Shortfall”), then, in addition to the Cash distribution as provided above, each Member shall deliver to Pueblo Holdings, within 10 days after written notice of an Escrow Cash Shortfall to the Seller Representative (a “Shortfall Notice”), an amount in Cash equal to the Escrow Cash Shortfall multiplied by such Member’s Pro Rata Portion; provided that if any amounts are unpaid pursuant to this Section 2.4(b)(i), Buyers shall be allowed to pursue a claim for such unpaid amounts in accordance with the procedures set forth in Section 10.4(h). If it is determined that Buyers are not entitled to a distribution of the Escrow Fund pursuant to Section 2.3(d)(i), the Escrow Agent shall deliver (A) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (B) to Sellers’ Representative all of the Cash remaining in the Escrow Fund upon such distribution. (ii) Notwithstanding anything in this Agreement to the contrary, the Escrow Agent shall distribute on a quarterly basis to the Sellers’ Representative, all interest, distributions, dividends and other income earned on the Escrow Fund.

Distribution of Escrow Fund. Distributions from the Escrow Fund shall --------------------------- be made as follows: (a) Upon receipt by the Escrow Agent of joint written instructions signed by both Buyer and the Stockholders' Representative, the Escrow Agent shall make payments out of the Escrow Fund in accordance with such instructions in immediately available funds within five (5) business days after receipt of such instructions or as soon as possible thereafter. (b) Upon receipt by the Escrow Agent of a certificate (an "Interim Distribution Certificate") signed by Buyer certifying that (i) enclosed therewith is a true, accurate and complete copy of a demand for payment (including any assessment or determination of an amount due), relating to one or more Audits, from the Internal Revenue Service (the "IRS") and/or any taxing authority of any state or locality, including the Massachusetts Department of Revenue (any such taxing authority, the "DOR") or (ii) Buyer reasonably believes the amount instructed to be paid therein is payable to the IRS and/or the DOR, relating to one or more Audits, and instructing the Escrow Agent to pay to the IRS and/or the DOR, as the case may be, the amount set forth in such Interim Distribution Certificate, which Interim Distribution Certificate shall be accompanied by the demand for payment, if any, the Escrow Agent shall make payments to the IRS or the DOR out of the Escrow Fund in accordance with such Interim Distribution Certificate in immediately available funds within five (5) business days after receipt of such Interim Distribution Certificate or as soon as possible thereafter. (c) Upon receipt by the Buyers becoming entitled to Escrow Agent of a distribution certificate (a "Final Distribution Certificate") signed by Buyer certifying that (i) full and final settlements with the IRS and the DOR of all matters relating to the Audits have been reached, and (ii) either (A) enclosed therewith is a true, accurate and complete copy of a demand for payment (including any assessment or a portion determination of an amount due) from the IRS and/or the DOR or (B) Buyer reasonably believes the amount instructed to be paid therein to the IRS and/or the DOR is payable to the IRS and/or the DOR, and instructing the Escrow Agent to (x) pay to the IRS and/or the DOR, as the case may be, the amount set forth in such Final Distribution Certificate and (y) pay in accordance with such Final Distribution Certificate the remaining balance, if any, of the Escrow Fund, the Escrow Agent shall make payments out of the Escrow Fund in accordance with such Final Distribution Certificate in immediately available funds within ten (10) business days after receipt of such Final Distribution Certificate or as soon as possible thereafter. Prior to making any payments out of the Escrow Fund pursuant to subparagraph (c) of this Section 2.3(d)(i)4, the Escrow Agent shall deliver (A) provide written notice to the Buyers out of the Escrow Fund, Cash in an amount equal to the Aggregate Consideration Deficit, (B) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (C) to Sellers’ Stockholders' Representative any Cash remaining in the Escrow Fund after the payments in clauses (A) and (B) of this Section 2.4(b)(i) have been made. If the Aggregate Consideration Deficit is greater than the amount of Cash in the Escrow Fund (such excess, the “Escrow Cash Shortfall”), then, in addition to the Cash distribution as provided above, each Member shall deliver to Pueblo Holdings, within 10 days after written notice of an Escrow Cash Shortfall to the Seller Representative that it has received a Final Distribution Certificate (a “Shortfall Notice”), an amount in Cash equal to the Escrow Cash Shortfall multiplied by copy of which shall accompany such Member’s Pro Rata Portion; provided that if any amounts are unpaid pursuant to this Section 2.4(b)(i), Buyers shall be allowed to pursue a claim for such unpaid amounts in accordance with the procedures set forth in Section 10.4(h). If it is determined that Buyers are not entitled to a distribution of the Escrow Fund pursuant to Section 2.3(d)(i), the Escrow Agent shall deliver (Anotice) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (B) to Sellers’ Representative all of the Cash remaining in the Escrow Fund upon such distributionfrom Buyer. (ii) Notwithstanding anything in this Agreement to the contrary, the Escrow Agent shall distribute on a quarterly basis to the Sellers’ Representative, all interest, distributions, dividends and other income earned on the Escrow Fund.

Distribution of Escrow Fund. Distributions from the Escrow Fund shall --------------------------- be made as follows: (a) Upon receipt by the Escrow Agent of joint written instructions signed by both Buyer and the Stockholders' Representative, the Escrow Agent shall make payments out of the Escrow Fund in accordance with such instructions in immediately available funds within five (5) business days after receipt of such instructions or as soon as possible thereafter. (b) Upon receipt by the Escrow Agent of a certificate (an "Interim Distribution Certificate") signed by Buyer certifying that (i) enclosed therewith is a true, accurate and complete copy of a demand for payment (including any assessment or determination of an amount due), relating to one or more Audits, from the Internal Revenue Service (the "IRS") and/or any taxing authority of any state or locality, including the Massachusetts Department of Revenue (any such taxing authority, the "DOR") or (ii) Buyer reasonably believes the amount instructed to be paid therein is payable to the IRS and/or the DOR, relating to one or more Audits, and instructing the Escrow Agent to pay to the IRS and/or the DOR, as the case may be, the amount set forth in such Interim Distribution Certificate, which Interim Distribution Certificate shall be accompanied by the demand for payment, if any, the Escrow Agent shall make payments out of the Escrow Fund in accordance with such Interim Distribution Certificate in immediately available funds within five (5) 2 business days after receipt of such Interim Distribution Certificate or as soon as possible thereafter. (c) Upon receipt by the Buyers becoming entitled to Escrow Agent of a distribution certificate (a "Final Distribution Certificate") signed by Buyer certifying that (i) full and final settlements with the IRS and the DOR of all matters relating to the Audits have been reached, and (ii) either (A) enclosed therewith is a true, accurate and complete copy of a demand for payment (including any assessment or a portion determination of an amount due) from the IRS and/or the DOR or (B) Buyer reasonably believes the amount instructed to be paid therein to the IRS and/or the DOR is payable to the IRS and/or the DOR, and instructing the Escrow Agent to (x) pay to the IRS and/or the DOR, as the case may be, the amount set forth in such Final Distribution Certificate and (y) pay in accordance with such Final Distribution Certificate the remaining balance, if any, of the Escrow Fund, the Escrow Agent shall make payments out of the Escrow Fund in accordance with such Final Distribution Certificate in immediately available funds within five (5) business days after receipt of such Final Distribution Certificate or as soon as possible thereafter. Prior to making any payments out of the Escrow Fund pursuant to subparagraph (c) of this Section 2.3(d)(i)4, the Escrow Agent shall deliver (A) provide written notice to the Buyers out of the Escrow Fund, Cash in an amount equal to the Aggregate Consideration Deficit, (B) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (C) to Sellers’ Stockholders' Representative any Cash remaining in the Escrow Fund after the payments in clauses (A) and (B) of this Section 2.4(b)(i) have been made. If the Aggregate Consideration Deficit is greater than the amount of Cash in the Escrow Fund (such excess, the “Escrow Cash Shortfall”), then, in addition to the Cash distribution as provided above, each Member shall deliver to Pueblo Holdings, within 10 days after written notice of an Escrow Cash Shortfall to the Seller Representative that it has received a Final Distribution Certificate (a “Shortfall Notice”), an amount in Cash equal to the Escrow Cash Shortfall multiplied by copy of which shall accompany such Member’s Pro Rata Portion; provided that if any amounts are unpaid pursuant to this Section 2.4(b)(i), Buyers shall be allowed to pursue a claim for such unpaid amounts in accordance with the procedures set forth in Section 10.4(h). If it is determined that Buyers are not entitled to a distribution of the Escrow Fund pursuant to Section 2.3(d)(i), the Escrow Agent shall deliver (Anotice) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (B) to Sellers’ Representative all of the Cash remaining in the Escrow Fund upon such distributionfrom Buyer. (ii) Notwithstanding anything in this Agreement to the contrary, the Escrow Agent shall distribute on a quarterly basis to the Sellers’ Representative, all interest, distributions, dividends and other income earned on the Escrow Fund.

Distribution of Escrow Fund. (ia) Upon In the Buyers becoming entitled event Parent has made, prior to the Final Escrow Release Date, a claim for indemnification in a Parent Claim Notice (in substantially the form attached hereto as Exhibit A) delivered to the Stockholder Representative and the Escrow Agent, and such claim has not been finally determined or has otherwise been objected to as provided herein (a “Pending Claim”), the Escrow Agent shall withhold from distribution of all or to the Eligible Company Holders a portion of the Escrow Fund pursuant equal to the Damages set forth in such Parent Claim Notice (such amount being a “Pending Claim Holdback”) until such time as either the Pending Claim has been finally determined or the objection resolved, as applicable, in which case the appropriate amounts will be either distributed to Parent or returned to the Escrow Fund (for distribution to the Eligible Company Holders as provided in Section 2.3(d)(i2.4(c) below), or both, as the case may be, all as more fully set forth herein. In addition, in the event Parent and the Stockholder Representative provide written notice to the Escrow Agent that the Stipulated Closing Net Working Capital Statement indicates a Working Capital Deficit, then the amount specified in such notice as the difference between $0 and the Working Capital Deficit shall be as soon as practical thereafter paid to Parent from the Escrow Fund. (b) Any amounts to be distributed from the Escrow Fund to the Eligible Company Holders shall be distributable to such Eligible Company Holders on a pro rata basis based upon their relative entitlement or assumed entitlement to receive Merger Consideration as specifically set forth in the spreadsheet attached hereto as Exhibit B (the “Spreadsheet”), upon which the Escrow Agent shall deliver be entitled to conclusively rely. (Ac) Subject to any claim for reimbursement by the Stockholder Representative as contemplated by Section 2.4(d) hereof, the Available Escrow Amount shall be distributed as follows: (i) the amount by which the Available Escrow Amount (immediately prior to such distribution) exceeds seven and one-half percent (7.5%) of the Merger Consideration shall be distributed to the Buyers Eligible Company Holders on the date which is twelve (12) months after the Closing Date (the “First Escrow Release Date”); (ii) all remaining Available Escrow Amount and any other amounts which shall have been delivered into the Escrow Account shall be distributed to the Eligible Company Holders on the date which is eighteen (18) months after the Closing Date (the “Final Escrow Release Date”); and (iii) any further amounts which, following the Final Escrow Release Date, shall be delivered into the Escrow Account or otherwise become available for distribution to the Eligible Company Holders (including amounts which may previously have been withheld due to a Pending Claim Holdback where final resolution of the related Pending Claim yields less than a full payment of the amount at issue to Parent), together with all interest and other income which has accrued thereon, shall be distributed to the Eligible Company Holders immediately following the date any such amount shall be so delivered or otherwise become so available. (d) The Stockholder Representative shall be entitled to be reimbursed from any portion of the Escrow Fund otherwise to be distributed to the Eligible Company Holders pursuant to the foregoing Section 2.4(c) for any loss, liability or expense incurred without bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative duties under the Merger Agreement (including counsel fees and other out-of-pocket expenses), such reimbursement to be made directly from the Escrow Fund by the Escrow Agent. The Escrow Agent may rely on the written instruction of the Stockholder Representative in this regard. (e) If the Escrow Agent is not able to deliver any portion of the Escrow Fund to the proper recipient within one (1) year of the date that final distribution of any remaining amount of the Escrow Fund should otherwise have been made pursuant to the foregoing Section 2.4(c) (or immediately prior to such earlier date on which any payment in respect thereof would otherwise escheat to or become the property of any Governmental Body), such portion of the Escrow Fund shall be delivered to Parent and the proper recipient shall thereafter look only to Parent, and only as a general creditor, for payment of such recipient’s claim for such portion of the Escrow Fund, Cash in an amount equal subject to applicable abandoned property, escheat and similar laws. (f) Notwithstanding any provision of this Escrow Agreement to the Aggregate Consideration Deficitcontrary, in the event that any payment is made to a holder of Dissenting Shares by the Surviving Corporation or Parent in respect of appraisal rights as contemplated by the Merger Agreement, then (Bi) to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (C) to Sellers’ Representative any Cash remaining in portion of the Escrow Fund after which would have represented the payments in clauses (A) potential distribution to such holder shall instead be distributed to Parent and (Bii) such holder’s former shares of this Section 2.4(b)(i) have been made. If Company Common Stock shall be removed from any calculation to determine the Aggregate Consideration Deficit is greater than the amount pro rata right of Cash such holder to participate in any distribution of the Escrow Fund (such excess, Fund. The Escrow Agent may rely on the “Escrow Cash Shortfall”), then, written instruction of the Surviving Corporation or the Parent in addition this regard. The Surviving Corporation or the Parent shall have the obligation to recalculate the Cash distribution as provided above, each Member shall deliver pro rata right of holders to Pueblo Holdings, within 10 days after written notice of an Escrow Cash Shortfall to the Seller Representative (a “Shortfall Notice”), an amount participate in Cash equal to the Escrow Cash Shortfall multiplied by such Member’s Pro Rata Portion; provided that if any amounts are unpaid pursuant to this Section 2.4(b)(i), Buyers shall be allowed to pursue a claim for such unpaid amounts in accordance with the procedures set forth in Section 10.4(h). If it is determined that Buyers are not entitled to a distribution of the Escrow Fund pursuant referred to Section 2.3(d)(i)in clause (ii) of the second preceding sentence, and in the absence of delivery to the Escrow Agent of such recalculation the Escrow Agent shall deliver (A) be entitled to the Audit Firm an amount in Cash equal to the amount payable to the Audit Firm by Sellers in accordance with Section 2.3(f), if applicable, and (B) to Sellers’ Representative all of the Cash remaining in the Escrow Fund upon such distribution. (ii) Notwithstanding anything in this Agreement to the contrary, the Escrow Agent shall distribute on a quarterly basis to the Sellers’ Representative, all interest, distributions, dividends and other income earned rely on the Escrow Fundexisting calculation.