Common use of Claims Upon Escrow Fund Clause in Contracts

Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or ----------------------- before the Release Date of a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of Agile (an "Officer's Certificate") stating that with respect to the indemnification obligations of the Shareholder Indemnitors in Section 8.2, Damages exist and specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty, default of a covenant or other agreement or claim to which such item is related, or the manner in which it is related to a Digital Litigation Matter, the Escrow Agent shall, subject to the provisions of this Section 8, deliver to Agile out of the Escrow Fund, as promptly as practicable after the claim is determined to be undisputed or any dispute concerning the claim is resolved as set forth in this Section 8, Agile Common Stock, cash or other assets held in the Escrow Fund having a value equal to such Damages, provided, however, that if the claim is based on a third-party claim, including a Digital Litigation Matter, that has not been fully adjudicated or settled or is not otherwise reasonably quantifiable by objective means, then the Officer's Certificate shall so state and briefly describe the circumstances that affect the quantifiability of the claimed amount. At such time, if any, as Agile enters into a settlement pursuant to Section 8.9(b) with respect to a claim made in an Officer's Certificate that was unquantified and the Shareholders' Agent has not consented in writing to such settlement, Agile will file a supplementary Officer's Certificate (which may be filed after the Release Date) with respect to such claim. For the purpose of compensating Agile for its Damages pursuant to this Agreement, the Escrow Shares shall be valued at the Escrow Release Price (defined below). For purposes of this Agreement, the term "Escrow Release Price" shall mean the average of the closing price per share of Agile's Common Stock as quoted on the NASDAQ National Market System, as reported on the West Coast Edition of the Wall Street Journal, for the 10 consecutive trading days ending five (5) trading days (such average to include the closing price per share of Agile Common Stock on the first day of the five trading days) prior to the date on which the Escrow Agent releases the Escrow Shares to Agile in accordance with this Section 8 and the Escrow Agreement.

Claims Upon Escrow Fund. Upon receipt by If the Parent Indemnitees shall have any claim for indemnification against the Shareholders under this Agreement on or before the Escrow Termination Date, they shall make a claim against the Escrow Fund in the following manner. A duly authorized officer of Parent shall prepare and execute and deliver to Shareholders and the Escrow Agent on or ----------------------- before the Release Date of a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of Agile (an "Officer's Certificate") stating that with respect to the indemnification obligations of the Shareholder Indemnitors Holder set forth in Section 8.29.1, Damages Losses exist and specifying in reasonable detail the individual items of such Damages Losses included in the amount so statedstated and the basis of the claim for such Losses, the date each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty, default of a covenant or other agreement or claim to which such item is related, or the manner in which it is related . Subject to a Digital Litigation MatterSection 9.9, the Escrow Agent shall, subject shall after thirty (30) days following receipt of the Officer's Certificate deliver from the Escrow Fund to the provisions of this Section 8, deliver to Agile out of the Escrow FundParent, as promptly as practicable after the claim is determined to be undisputed or any dispute concerning the claim is resolved as set forth in this Section 8practicable, Agile Common Stock, cash or other assets held in such portion of the Escrow Fund having a value Shares as is equal to such DamagesLosses, provided, however, provided that no such delivery may be made if the Shareholders shall have objected in a written statement to the claim is based on a third-party claim, including a Digital Litigation Matter, that has not been fully adjudicated or settled or is not otherwise reasonably quantifiable by objective means, then made in the Officer's Certificate Certificate, and such statement shall so state and briefly describe have been delivered to the circumstances that affect the quantifiability of the claimed amount. At such time, if any, as Agile enters into a settlement pursuant to Section 8.9(b) with respect to a claim made in an Officer's Certificate that was unquantified Escrow Agent and the Shareholders' Agent has not consented in writing Parent prior to the expiration of such settlementthirty (30) day period. Notwithstanding any provision of this Agreement, Agile will file a supplementary Officer's Certificate (which may be filed after the Release Date) with respect to such claim. For for the purpose of compensating Agile the Parent Indemnitees for its Damages their Losses or calculating the value of Escrow Shares or Additional Escrow Shares to be released pursuant to this AgreementAgreement and delivered to the Parent, the Parent Common Stock in the Escrow Shares shall be valued at the Escrow Release Price (defined below). For purposes of this Agreement, the term "Escrow Release Price" shall mean the average Per Share Value as of the closing price per share of Agile's Common Stock as quoted on the NASDAQ National Market System, as reported on the West Coast Edition of the Wall Street Journal, for the 10 consecutive trading days ending five (5) trading days (such average to include the closing price per share of Agile Common Stock on the first day of the five trading days) prior to the date on which the Escrow Agent releases the Escrow Shares to Agile in accordance with this Section 8 and the Escrow AgreementEffective Date.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or ----------------------- before the Release Date last day of the Escrow Period of a certificate signed by the Chief Executive Officer, President or Chief Financial Officer chief executive officer of Agile SERENA (an "“Officer's ’s Certificate"”) (A) stating that with respect SERENA has paid or incurred or has a reasonable factual basis to believe that it will incur Losses; (B) stating the indemnification obligations dollar amount of such paid, incurred, or reasonably anticipated Losses; (C) the Shareholder Indemnitors number of Escrow Shares and/or the amount of cash to be retained, subject to Sections 1.3(e) and (f) hereof, in Section 8.2, Damages exist the Escrow Fund to satisfy such Loss; (D) the XXXXXX Xxxxx Per Share (as defined below) used to determine clause (C) above; and (E) specifying in reasonable detail the individual items of such Damages Losses included in the amount so stated, the date each such item was paidpaid or incurred, or properly accrued or arosethe basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty, default of a warranty or covenant or other agreement or claim to which such item is relatedrelated (including specific identification of the misrepresentation, breach of warranty or covenant of the manner StarTool Agreement to which the Loss relates). Upon the expiration of the forty-five (45) day period specified in which it is related to Section 1.3(e) hereof, and provided that Escrow Agent has not received notice of a Digital Litigation MatterDisputed Claim in accordance with Section 1.3(e) hereof, the Escrow Agent shall, subject to the remaining provisions of this Section 81.3 hereof, deliver to Agile SERENA out of the Escrow FundFund the number of shares **= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. of SERENA Common Stock specified in the Officer’s Certificate, as promptly as practicable after the claim is determined such shares to be undisputed or any dispute concerning the claim is resolved allocated among ** as set forth in this Section 8, Agile Common Stock, cash or other assets held in the Escrow Fund having a value equal to such Damages, provided, however, that if the claim is based on a third-party claim, including a Digital Litigation Matter, that has not been fully adjudicated or settled or is not otherwise reasonably quantifiable by objective means, then the Officer's Certificate shall so state and briefly describe the circumstances that affect the quantifiability of the claimed amount. At such time, if any, as Agile enters into a settlement pursuant to Section 8.9(b) with respect to a claim made in an Officer's Certificate that was unquantified and the Shareholders' Agent has not consented in writing to such settlement, Agile will file a supplementary Officer's Certificate (which may be filed after the Release Date) with respect to such claim. For the purpose of compensating Agile for its Damages pursuant to this Agreement, the Escrow Shares shall be valued at the Escrow Release Price (defined below). For purposes of this Agreement, the term "Escrow Release Price" shall mean the average of the closing price per share of Agile's Common Stock as quoted on the NASDAQ National Market System, as reported on the West Coast Edition of the Wall Street Journal, for the 10 consecutive trading days ending five (5) trading days (such average to include the closing price per share of Agile Common Stock on the first day of the five trading days) prior to the date on which the Escrow Agent releases the Escrow Shares to Agile in accordance with this Section 8 and the Escrow Agreement’s Certificate.

Claims Upon Escrow Fund. (a) Upon receipt by the Escrow Agent at any time on or ----------------------- before the Release Date last day of the Escrow Period of a certificate signed by the Chief Executive Officer, President or Chief Financial Officer any officer of Agile Parent (an "Officer's Certificate") (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Damages, directly or indirectly, as a result of any inaccuracy in, or omission from any representation or warranty or any breach of or default in connection with respect any covenant or agreement (or any claim by any third party alleging, constituting or involving an inaccuracy, omission, breach or default), given or made (i) by the Company in this Agreement, the Company Disclosure Schedule, any agreement forms of which are annexed as Annexes to this Agreement, or any certificate delivered pursuant to this Agreement, or (ii) by the indemnification obligations stockholders of the Shareholder Indemnitors Company in Section 8.2connection with this Agreement, Damages exist the Voting and Stockholder Representation Agreement and Release (B) specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paidpaid or properly accrued, or properly accrued or arosethe basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty, default of a covenant or other agreement or claim covenant to which such item is related, or related and (C) specifying the manner in which it is related to a Digital Litigation Matteramount of Escrow Cash and the number of Escrow Shares and Escrow Options claimed, the Escrow Agent shall, subject to the provisions of this Section 8, 10.6 deliver to Agile out of the Escrow FundParent, as promptly as practicable after the claim is determined to be undisputed or any dispute concerning the claim is resolved as set forth in this Section 8practicable, Agile Common Stock, cash or other assets held in the Escrow Fund Consideration having a value equal to such Damages, provided, however, that if the claim is based . The Escrow Consideration to be delivered on a third-party claim, including a Digital Litigation Matter, that has not been fully adjudicated or settled or is not otherwise reasonably quantifiable by objective means, then the Officer's Certificate shall so state and briefly describe the circumstances that affect the quantifiability behalf of each stockholder of the claimed amountCompany and holder of assumed Company Options shall be in proportion to the amount of the Escrow Consideration contributed on behalf of such stockholder or holder of assumed Company Options (except that Escrow Shares contributed on behalf of the stockholders of the Company shall be delivered before Escrow Cash). At such time, if any, as Agile enters into a settlement pursuant to Section 8.9(b) with respect to Where the basis for a claim made in an Officer's Certificate that was unquantified and the Shareholders' Agent has not consented in writing to such settlement, Agile will file a supplementary Officer's Certificate (which may be filed after the Release Date) with respect to such claim. For the purpose of compensating Agile for its Damages pursuant to this Agreement, upon the Escrow Shares shall Fund by Parent is that Parent reasonably anticipates that it will pay or accrue Damages, no payment will be valued at made from the Escrow Release Price (defined below). For purposes of this Agreement, the term "Escrow Release Price" shall mean the average of the closing price per share of Agile's Common Stock as quoted on the NASDAQ National Market System, as reported on the West Coast Edition of the Wall Street Journal, Fund for the 10 consecutive trading days ending five (5) trading days (such average to include the closing price per share of Agile Common Stock on the first day of the five trading days) prior to the date on which the Escrow Agent releases the Escrow Shares to Agile in accordance with this Section 8 Damages unless and the Escrow Agreementuntil such Damages are actually paid or accrued.

Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or ----------------------- before the Release Expiration Date of a certificate signed by the Chief Executive Officer, President or Chief Financial Officer Seller’s Representative and any officer of Agile Purchaser (an "Officer's the “Purchaser Escrow Certificate"”) stating (i) that with respect Losses (as determined pursuant to the indemnification obligations procedural requirements of Section 8.4 and the Shareholder Indemnitors Escrow Agreement) exist in Section 8.2, Damages exist an aggregate amount greater than $100,000 and specifying in reasonable detail (ii) the individual items amount of such Damages included in the amount so stated, the date Losses that Purchaser is entitled to recover from each such item was paid, or properly accrued or arose, and the nature of the misrepresentation, breach of warranty, default of a covenant or other agreement or claim Seller pursuant to which such item is related, or the manner in which it is related to a Digital Litigation MatterArticle VIII hereof, the Escrow Agent shall, subject to the provisions of this Section 8, shall deliver to Agile Purchaser out of the Escrow Fund, as promptly as practicable after the claim is determined to be undisputed or any dispute concerning the claim is resolved as set forth in this Section 8practicable, Agile Common Stock, cash such number of Escrow Shares (or other assets held in the Escrow Fund Fund) that have a value equal to such Losses Purchaser is entitled to recover. In satisfaction of any Seller’s indemnification obligations hereunder (other than in respect of a Defined Tax Liability, as provided in Section 8.7), at Seller’s option, in lieu of such delivery from the Escrow Fund, or if the Expiration Date has passed, Seller may deliver to Purchaser directly shares of Purchaser Common Stock or cash having a value equal to such DamagesLosses Purchaser is entitled to recover pursuant to a Claim Notice, providedunless the Indemnifying Party has objected to such claim pursuant to Section 8.4(b), however, that if in which case no delivery need be made until the claim is based on a third-party claimresolved in accordance with the other provisions of Section 8.4. Further, including a Digital Litigation Matter, that has Seller may not been fully adjudicated or settled or is not otherwise reasonably quantifiable by objective means, then the Officer's Certificate shall so state and briefly describe the circumstances that affect the quantifiability of the claimed amount. At make any such time, if any, as Agile enters into a settlement pursuant to Section 8.9(b) election with respect to a claim made in an Officer's Certificate that was unquantified and the Shareholders' Agent has not consented in writing to during such settlement, Agile will file a supplementary Officer's Certificate (which may be filed after the Release Date) time with respect to such claimany Loss that is the subject of a Claim Notice as to which the Sellers’ Representative has not objected pursuant to Section 8.4(b), but may determine in conjunction with the resolution of the claim in what manner it will satisfy its obligation to indemnify for any Losses. Purchaser shall be required to proceed against the Escrow Fund first for the recovery of Losses until the Escrow Fund has been exhausted in its entirety unless the Sellers’ Representative consents otherwise in writing. For the purpose of compensating Agile Purchaser for its Damages any Losses pursuant to this Agreement, shares of Purchaser Common Stock (whether from the Escrow Shares Fund or otherwise) shall be valued at the Escrow Release Price (defined below). For purposes Average Share Value per share on the date of this Agreement, . The Escrow Agent shall not make any delivery if the term "Escrow Release Price" shall mean the average of the closing price per share of Agile's Common Stock as quoted on the NASDAQ National Market System, as reported on the West Coast Edition of the Wall Street Journal, for the 10 consecutive trading days ending five (5Seller’s Representative has objected to such release pursuant to Section 8.4(b) trading days (until such average to include the closing price per share of Agile Common Stock on the first day of the five trading days) prior objection has been resolved pursuant to the date on which the Escrow Agent releases the Escrow Shares to Agile in accordance with this provisions of Section 8 and the Escrow Agreement8.4.