Common use of Escrow Fund Clause in Contracts

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), the Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.

Escrow Fund. To provide Notwithstanding the provisions of Article I, upon the Closing of the Merger, the Buyer shall issue to each Company Stockholder 90% of the Buyer Common Stock otherwise issuable to such stockholder pursuant to Article I (rounded upward to the nearest whole share). The remaining 10% of the Buyer Common Stock issuable to a fund against which an Acquiror Indemnified Party may assert claims Company Stockholder in connection with the Merger shall be referred to as "Escrow Shares," collectively, the Escrow Shares shall be referred to as the "Escrow Fund." The obligation of indemnification the Buyer to issue the Escrow Shares otherwise issuable upon the Merger or any such exercise shall be subject to reduction to satisfy the Company's obligations under this Article VIII (an “Acquiror Indemnification Claim”), the Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with Section 2.9VII. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposesDamages that: (i) are accepted as valid by the optionholders’ portion Stockholders' Agents (as defined below); or (ii) are determined to be valid by arbitration as described in this Article VII, shall reduce the number of Escrow Shares issuable to the Company Stockholders by the number of Escrow Shares (rounded to the closest whole number) equal to such Damages divided by the Buyer Share Market Value. As soon as practicable after the Effective Date, the Escrow Shares shall be registered in the name of, and be deposited with, Mercantile Bank (or other institution selected by the Buyer with the reasonable consent of the Company) as escrow agent (the "Escrow Agent"), such deposit to constitute the Escrow Fund and to be governed by the terms set forth herein and in the Escrow Agreement attached hereto as Exhibit D. The Escrow Shares shall be beneficially owned by the Company Stockholders and the Escrow Fund shall be treated as compensation paid by available to partially compensate the Company Buyer pursuant to the optionholders if and indemnification obligations of the Former Company Stockholders. With respect to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives claims made prior to the Closing. Clause (v) termination of the preceding sentence is intended to ensure that the right "Escrow Period" (as defined below), arising out of breaches of the stockholders representations and warranties set forth in Section 2.12 and, with respect only to Intellectual Property and Third Party Intellectual Property Rights, in Section 2.14 (collectively, the "Intellectual Property Claims"), the Buyer, in addition to the stockholders’ portion of Escrow Fund, may seek indemnification from the Former Company Stockholders pursuant to the Affiliate Agreements and Stockholder Agreements. To the extent not used for the foregoing purposes, such Escrow Fund is not treated Shares shall be released as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingprovided in this Article VII.

Escrow Fund. To provide Subject to the limitations set forth in Section 10.2(c), if any Indemnitee seeks to assert a fund against which an Acquiror Indemnified Party may assert claims of Claim Notice for indemnification under pursuant to this Article VIII Agreement (an “Acquiror Indemnification Claim”), the Escrow Amount such Indemnitee shall be deposited into escrow pursuant required to the Escrow Agreement first submit such Claim Notice, and any dispute with respect to such indemnification claim shall be resolved, in accordance with the terms of Section 2.910.2(d) or Section 10.2(e) of this Agreement. The Prior to any such Indemnitee seeking payment directly from any Escrowed Holder with respect to such Indemnification Claim to the extent there are funds available in the Escrow Fund, such Indemnitee shall first seek payment from the Escrow Fund shall be held based on, with respect to the portion of the Losses attributed to such Escrowed Holder, such Escrowed Holder’s Indemnity Pro Rata Share of the funds in the Escrow Fund (payable from the Escrow Fund, based on the same pro rata ratio between cash and distributed Consideration Shares applicable to such Escrowed Holder in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only Allocation Schedule); provided, however, that if there are not sufficient funds in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything , subject to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII Section 10.2(c), such Indemnitee shall apply be permitted to seek indemnification directly from the Escrowed Holders, based on each Escrowed Holder’s Indemnity Pro Rata Share, to the extent of any action for specific performanceshortfall. Notwithstanding the aforesaid, injunctive relief the recourse of an Indemnitee with respect to claims resulting from fraud or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: intentional misrepresentation by (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company any Escrowed Holder, solely with respect to the optionholders if such Escrowed Holder who committed such fraud or intentional misrepresentation and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right Company, solely with respect to an Escrowed Holder who had actual knowledge of the stockholders to the stockholders’ portion such of Company’s fraud or intentional misrepresentation, shall, in both cases, be, as shall be determined by Parent at its sole discretion, either from (X) the Escrow Fund or (Y) directly from the applicable Escrowed Holder. For the avoidance of doubt, notwithstanding the partial payment of the Net Aggregate Consideration in Consideration Shares, the Net Aggregate Consideration for the purpose of this Article X shall be eligible deemed equal to $69,200,259, as may be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 adjusted pursuant to the final Allocation Schedule, pursuant to the terms of the Code Agreement and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror each Consideration Share shall be treated valued for purposes of indemnification and this Article X as the owner value of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to share at the Closing, i.e., $ 430.41 (the “Agreed Value”). Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.c)

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Subject to the terms hereof, at the Escrow Amount Effective Time ----------- Esperion shall be deposited into escrow pursuant deliver to the Escrow Agreement Agent, for the account of the Talaria Stockholders, in accordance with their respective interests as shown in Part I of Schedule 1 hereto, [****] shares of the Esperion Common to be distributed by Esperion to the Talaria Stockholders pursuant to Section 2.92.3(b)(i) of the Merger Agreement (collectively, the "Initial Escrow"). The -------------- Additionally, if and when Esperion is obligated to make payment to the Talaria Stockholders of any Prepaid Royalty Payment or Royalty pursuant to Section 5.4(a) or 5.4(b) of the Merger Agreement, respectively, Esperion shall deliver to the Escrow Fund shall be held and distributed Agent, for the account of the Talaria Stockholders, in accordance with this Article VIII and their respective interests as shown in Part II of Schedule 1 hereto, [****] (***) of the amount of such Prepaid Royalty Payment or Royalty, as the case may be (collectively, the "Additional Deposits" and, together with the ------------------- Initial Escrow, the "Escrow Fund"). Subject to the requirements of Section ----------- 5.4(b)(viii) of the Merger Agreement, the delivery by Esperion to the Escrow Agreement. Each Acquiror Indemnification Claim Agent of the Additional Deposits, if any, shall be made only in accordance with this Article VIII and by Esperion to the Escrow AgreementAgent in cash, shares of Esperion Common or a combination thereof, in Esperion's sole discretion. An Acquiror Indemnified Party For this purpose, each share of Esperion Common shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against be valued at its Fair Market Value at the Escrow Fundtime the applicable Prepaid Royalty Payment is achieved or the Royalty becomes due and payable, as the case may be. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion All of the Escrow Fund shall be treated as compensation paid held by the Company Escrow Agent to secure the optionholders if Talaria Stockholders' obligations hereunder and to shall not, except as expressly provided herein, be disposed of by the Escrow Agent. To the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to consists of shares of Esperion Common (the optionholders"Escrow Shares"), (ii) such Escrow ------------- Shares shall be registered in the names of the individual Talaria Stockholders, in accordance with their respective interests as shown on Schedule 1 hereto. The Talaria Stockholders shall have the right to vote the Escrow Fund in accordance with their respective interests. The respective interests of the stockholders to the stockholders’ portion of Talaria Stockholders in the Escrow Fund shall not be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 transferable or assignable. Simultaneously with the execution and delivery of this Agreement, each of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror Talaria Stockholders shall be treated as deliver to the owner Escrow Agent stock powers endorsed in blank for use by the Escrow Agent in furtherance of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required transactions contemplated by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingAgreement.

Escrow Fund. To provide a fund against which The Purchaser shall deposit an Acquiror Indemnified Party may assert claims amount of indemnification under this Article VIII Three Million Three Hundred and Ten Thousand U.S. Dollars (an US$ 3,310,000) of the Purchase Price in cash (the “Acquiror Indemnification ClaimEscrowed Cash”)) and in Redeemable Ordinary A Shares of the Purchaser (out of the Consideration Shares) (the “Escrowed Shares” and together with the Escrowed Cash, the “Escrow Amount”) at the Closing into an escrow account, based on the allocation between Escrowed Cash and Escrowed Shares as set forth in the Waterfall, provided that the portion of the Escrowed Shares shall not exceed the pro rata shares of the Consideration Shares out of the Purchase Price, where the cash portion thereof shall bear interest (the “Escrow Fund”) with the Escrow Agent, to be held by the Escrow Agent in accordance with and subject to the provisions of this Agreement and the escrow agreement in the form attached as Schedule 2.8 hereto (the “Escrow Agreement”) to secure the Indemnified Parties’ right to indemnification in accordance with Section 10 below and for payment to the Purchaser if the Aggregate Purchase Price Adjustment is lower than the Estimated Aggregate Purchase Price Adjustment, in accordance with Section 2.7. The allocation between Escrowed Cash and Escrowed Shares is determined with respect to each Executing Shareholder, as notified prior to the date hereof, and with respect to any Non-Executing Shareholder – to the extent that such shareholder signs a joinder to this Agreement prior to Closing, in accordance with the instructions set forth therein, and to the extent no such joinder was signed, or such Non-Executing Shareholder did not provide written request to receive Consideration Shares, then solely from cash. The Escrow Amount shall be deposited into escrow pursuant contributed by each Indemnifying Party as set forth in the Waterfall (and, accordingly, if released to the Escrow Agreement Indemnifying Parties, released on a pro-rata basis in accordance with Section 2.9such Waterfall). The release of the remaining amounts in the Escrow Fund shall be held and distributed (except such amounts as are subject to pending Claims under the Escrow Agreement) to the Paying Agent or the 102 Trustee, as applicable for further distribution to the Indemnifying Parties will occur on the eighteen (18) month anniversary of the Closing subject to the terms of the Escrow Agreement; provided that in accordance with the event of any conflict between this Article VIII Agreement and the Escrow Agreement, the terms of this Agreement will prevail. Each Acquiror Indemnification Claim In addition, the Purchaser shall be made only deposit the Expense Fund with the Escrow Agent in the accordance with this Article VIII Section 4.6 below and the terms of the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against For the avoidance of doubt, the Expense Fund is addressed in the Escrow FundAgreement for convenience purposes and the Purchaser shall have no liability in connection therewith. The fees and expenses associated with the services of the Escrow Agent shall be borne solely and completely (100%) by the Purchaser. Notwithstanding anything the above, in lieu of depositing any amounts in respect of the Escrow Fund on account of the Retained Sellers’ portion of the Purchase Price, it is agreed that such percentage out of the Retained Holdback Amount that corresponds to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholdersretained Sellers’ portion of the Escrow Fund Amount (the “Heldback Escrow”) shall be treated as compensation paid by serve to secure the Company Indemnified Parties’ right to indemnification in accordance with Section 10 below and for payment to the optionholders Purchaser if the Aggregate Purchase Price Adjustment is greater than the Estimated Aggregate Purchase Price Adjustment, in accordance with Section 2.7, and to in case of any claims against the extent any Escrow, the portion of the optionholders’ portion Heldback Escrow that is held by the Purchaser shall be deemed to have been claimed against as well on a pro-rata basis together with any amounts and Consideration Shares in the Escrow Fund, and it will be payable to the Retained Sellers subject to the terms of the Holdback Agreement, only when and if such amount is eligible for release pursuant to the terms of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of Agreement. Such Heldback Escrow shall not be deposited with the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingAgent.

Escrow Fund. To provide a fund against which At the Effective Time the Company's shareholders ----------- will be deemed to have received and consented to the deposit with the Escrow Agent (as defined below) of the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) pursuant to an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII Escrow Agreement on customary terms to be mutually agreed among Parent, the Company and the Escrow Agent (an “Acquiror Indemnification Claim”as defined below), without any act required on the part of any shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act required on the part of any shareholder, will be deposited with an escrow agent acceptable to Parent and the Securityholder Agent (as defined in Section 6.2(i)(i) below) as Escrow Agent (the "Escrow Agent"), such deposit to ------------ constitute an escrow fund (the "Escrow Fund") to be governed by the terms set ----------- forth herein and at Parent's cost and expense. The portion of the Escrow Amount contributed on behalf of each shareholder of the Company shall be in proportion to the aggregate Parent Common Shares which such holder would otherwise be entitled under Section 1.6. The Escrow Amount shall be deposited into escrow pursuant to contributed entirely out of the Escrow Agreement shares of Parent Common Shares issuable upon the Merger in accordance with Section 2.9respect of Company Common Stock. The Escrow Fund shall be held available to compensate Parent and distributed in accordance with this Article VIII its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and ---- collectively "Losses") incurred by Parent, its officers, directors, or ------ affiliates (including the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and Surviving Corporation) directly or indirectly as a result of any inaccuracy or breach of a representation or warranty of the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary Company contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and II herein (as modified by the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid Schedules), or any failure by the Company to perform or comply with any covenant contained herein. Parent and the optionholders Company each acknowledge that such Losses, if and any, would relate to unasserted contingent liabilities existing at the extent Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger consideration. Parent may not receive any portion of the optionholders’ portion of shares from the Escrow Fund is actually distributed unless and until Officer's Certificates (as defined in paragraph (e) below) identifying Losses, the aggregate amount of which exceed $100,000, have been delivered to the optionholdersEscrow Agent as provided in paragraph (f). In such case, (ii) the right of the stockholders to the stockholders’ portion of Parent may recover from the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 its Losses in excess of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingfirst $100,000.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims As security for the indemnity obligations set forth in this Agreement, and by virtue of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Agreement and the Agreement of Merger, the Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount, without any act of any of the Shareholders. The Escrow Amount shall be deposited into escrow pursuant deducted from the shares of Parent Common Stock to the Escrow Agreement in accordance with Section 2.9be received by Shareholders under this Agreement. The Escrow Fund shall be held and distributed in accordance available to compensate the Indemnified Parties, or any one of them, for any claims by such Indemnified Parties for any Losses suffered or incurred by them. As soon as practicable after the Effective Time, the Escrow Amount, without any act of the Shareholders, will be deposited with this Article VIII [________________], as Escrow Agent hereunder, or another institution acceptable to Parent and the Shareholder Representative (as defined in Section 7.4 hereof), such deposit of the Escrow AgreementAmount to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. Each Acquiror Indemnification Claim The Escrow Agent may execute this Agreement following the date hereof and prior to the Closing, and such later execution, if so executed after the date hereof, shall not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. Parent may not receive any proceeds from the Escrow Fund unless and until an Officer's Certificate(s) (as defined in Section 7.3(d) hereof) identifying Losses in excess of $100,000 (the "Basket Amount") has or have been delivered to the Escrow Agent as provided in Section 7.3(d) hereof, in which case Parent shall be made only in accordance with this Article VIII entitled to recover all Losses. Notwithstanding the foregoing, Parent shall be entitled to receive payments out of the Escrow Fund for, and the Escrow Agreement. An Acquiror Indemnified Party Basket Amount shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything not apply as a threshold to, any and all claim or payments with respect to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) any amounts in excess of the optionholders’ portion Total Merger Consideration required to be paid to holders of Company Capital Stock in respect of their exercise of dissenter's rights pursuant to Section 1.11 hereof and (ii) which did not cause a reduction in the calculation of Total Merger Consideration on the Closing Date. Absent fraud or intentional misrepresentation, from and after the Closing, recourse of the Indemnified Parties to the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if sole and to the extent any portion exclusive remedy of the optionholders’ portion Indemnified Parties for any losses out of the Escrow Fund is actually distributed to the optionholdersany breach or inaccuracy in any Representation, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state warranty covenant or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) agreement contained in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingAgreement.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party As security for the indemnity provided for in Section 7.2 hereof and by virtue of this Agreement and the Merger Agreement, the Company and the Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (as defined below) (plus any additional shares as may assert claims be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow Amount) without any act of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)the Company or any Shareholders. As soon as practicable after the Effective Time, the Escrow Amount shall Amount, without any act of any Shareholders, will be deposited into with U.S. Bank Trust, N.A. (or other institution acceptable to Parent and the Securityholder Agent (as defined in Section 7.3(g) below)) as Escrow Agent (the "ESCROW AGENT"), such deposit to constitute an escrow pursuant fund (the "ESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof and prior to the Effective Time, and such latter execution shall not affect the binding nature of this Agreement as of the date hereof among the signatories hereto. Nothing herein shall limit the liability of the Company for any breach of any representation, warranty, or covenant contained in this Agreement if the Merger does not close. Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d)(i) below) identifying Losses, in excess of $100,000 (the "Basket Amount") have been delivered to the Escrow Agreement Agent as provided in accordance with Section 2.9. The Escrow Fund paragraph (d) below, in which case Parent shall be held and distributed in accordance entitled to recover all Losses including the Basket Amount; PROVIDED, HOWEVER, with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything respect to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposeseach of: (i) the optionholders’ portion Third Party Expenses in excess of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if greater of (A) Estimated Third Party Expenses or (B) $200,000, and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right Net Assets as of the stockholders to Closing Date less than the stockholders’ portion lesser of the Escrow Fund shall be eligible to be treated (A) Estimated Net Assets or (B) $250,000, each as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned determined from the investment Closing Balance Sheet and reinvestment therefore not previously deducted from the Total Consideration, the aforementioned $100,000 Basket Amount shall not be applicable for purposes of claims of Losses against the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party At the Effective Time the Company's stockholders will be deemed to have received and consented to the deposit with the Escrow Agent (as defined below) of the Escrow Amount (plus any additional shares as may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time), without any act required on the part of any stockholder in accordance with the terms and provisions of an Escrow Agreement in substantially the form attached hereto as Exhibit G (the "Escrow Agreement"). As soon as practicable after the Effective Time, the Escrow Amount, without any act required on the part of any stockholder, will be deposited with an escrow agent acceptable to Parent and the Stockholder Agent (as defined in Section 7.2(g)(i) below) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in the Escrow Agreement and at Parent's cost and expense. The portion of the Escrow Amount contributed on behalf of each stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Sections 1.6(a) and 1.6(b). The Escrow Amount shall be deposited into escrow pursuant to contributed entirely out of the Escrow Agreement shares of Parent Common Stock issuable upon the Merger in accordance with Section 2.9respect of Company Common Stock. The Escrow Fund shall be held is available to compensate Parent and distributed in accordance with this Article VIII its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defenses (hereinafter individually a "Loss" and collectively "Losses") incurred by Parent, its officers, directors, or affiliates (including the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and Surviving Corporation) directly or indirectly as a result of any inaccuracy or breach of a representation or warranty of the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary Company contained in this AgreementArticle II herein, none of the limitations set forth in this Article VIII shall apply to or any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid failure by the Company to perform or comply with any covenant contained herein, or for any Losses suffered by Parent or the optionholders if and Company as a result of the failure by Administaff to provide the Benefit Services or the improper provision of the Benefit Services as a result of which Parent or the Company is subject to liability to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state Company's employees or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoinggovernmental agency.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party At the Effective Time the Company's stockholders ----------- will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may assert claims be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of indemnification under this Article VIII any stockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any stockholder, will be deposited with U.S. Bank Trust NA (an “Acquiror Indemnification Claim”or other institution acceptable to Parent and the Securityholder Agent (as defined in Section 7.2(g) below)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund ------------ (the "Escrow Fund") to be governed by the terms set forth herein and at Parent's ----------- cost and expense. The portion of the Escrow Amount contributed on behalf of each stockholder of the Company shall be in proportion to the aggregate Parent Common Stock which such holder would otherwise be entitled under Section 1.6(a). No portion of the Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement contributed in accordance with Section 2.9respect of any Company Options or warrants. The Escrow Fund shall be held available to compensate Parent and distributed in accordance with this Article VIII its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively ---- "Losses") incurred by Parent, its officers, directors, or affiliates (including ------ the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none Surviving Corporation) directly or indirectly as a result of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion any inaccuracy or breach of a representation or warranty of the Escrow Fund shall be treated Company or any contained in Article II herein (as compensation paid modified by the Company Schedules), (ii) any failure by the Company to perform or comply with any covenant contained herein, (iii) the optionholders if and to payment of $500,000 in connection with the extent any portion obligation of the optionholders’ portion Company set forth in Schedule 2.19, which payment shall be deemed a "Loss" for purposes of this Agreement (the "Fee Payment") or (iv) the payment by the Parent of cash to Imperial Bank in connection with the exercise of the put right contained in that certain Warrant dated June 27, 1997 (the "Warrant Payment"). Parent may not receive any shares from the Escrow Fund is actually distributed unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $75,000, have been delivered to the optionholdersEscrow Agent as provided in paragraph (e) and such amount is determined pursuant to this Article VII to be payable; in such case, (ii) the right of the stockholders to the stockholders’ portion of Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses; provided, however, that in connection with the ----------------- Fee Payment, Parent shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of receive shares from the Escrow Fund solely for tax purposes, immediately following the Closing in an amount equal to the Fee Payment and/or the Warrant Payment (in accordance with Section 7.2(d)(ii) below) and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, such shares shall be allocable paid without regard to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing$75,000 limitation referenced above.

Escrow Fund. To provide a fund against (i) Prior to or simultaneously with the Closing, the Members’ Representative and Parent shall enter into an escrow agreement substantially in the form of Exhibit B hereto (the “Escrow Agreement”) with the Escrow Agent, or if the Escrow Agent is unwilling or unable to serve, then such other financial institution of at least $500,000,000 in total assets mutually acceptable to the Members’ Representative and Parent. Pursuant to the terms of the Escrow Agreement, Parent shall deposit (i) one or more certificates in the name of the Escrow Agent representing the Escrow Securities and (ii) the Escrow Amount into an escrow account, which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII account is to be managed by the Escrow Agent (an the “Acquiror Indemnification ClaimEscrow Account”). Any Escrow Securities, the Escrow Amount shall be deposited into escrow pursuant to and Proceeds in the Escrow Agreement in accordance with Section 2.9Account are collectively referred to herein as the “Escrow Fund”. The Escrow Fund Agreement shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be provide that so long as a bona fide, good faith claim for indemnification has not been made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this AgreementParent, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: that (i) the optionholders’ entirety of the Escrow Fund remain with the Escrow Agent for (18) eighteen months, (ii) after completion of (18) eighteen months post Closing, the Escrow Amount and that portion of Escrow Shares (and/or any Proceeds or common stock of Parent received by virtue of the exercise of Parent Warrants and Redemption Warrants) in excess of $3,000,000 in value based on the Escrow Per Share Market Value be released to the Members as well as the entirety of the Escrow Warrants, and (iii) upon completion of (60) sixty months after Closing, the Escrow Account shall be closed and all remaining Escrow Shares shall be released to the Members. In connection with such deposit of the Escrow Securities and Escrow Amount with the Escrow Agent and as of the Effective Time, each holder of Company Interest will be deemed to have constructively received and deposited with the Escrow Agent each Member’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such Member’s ownership of Company Interests (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund) as reflected on the Company Interest Certificates, without any further action by the Members. Distributions of any Escrow Securities or the Escrow Fund or Proceeds from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement, but shall occur no later than the end of the indemnity periods as set forth in Section 10.01. The adoption of this Agreement and the approval of the Merger by the Members shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Securities, Escrow Amount and Proceeds in the Escrow Fund and the appointment of the Members’ Representative. No Escrow Securities contributed to the Escrow Fund shall be treated as compensation paid by the Company unvested or subject to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of repurchase, risk of forfeiture or other condition in favor of Parent, the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state Surviving Corporation or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingother entity.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), At the Effective Time each Shareholder will be deemed to ----------- have received and consented to the deposit with the Escrow Amount shall be deposited into escrow Agent (as defined below) of the Escrow Shares pursuant to the Escrow Agreement in accordance Agreement, without any act required on the part of the shareholder. As soon as practicable after the Effective Time, the Escrow Shares, without any act required on the part of any shareholder, will be deposited with Section 2.9an escrow agent acceptable to Parent and the Representative (as defined below) as Escrow Agent (the "Escrow Agent"), such ------------ deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the ----------- terms set forth herein. The portion of the Escrow Fund Amount contributed on behalf of each Shareholder shall be held in proportion to the aggregate WebMD Series B Preferred Stock which such holder would otherwise be entitled to receive under Section 3.1, which respective percentage interest ( the "Percentage Interest") will be determined as of the Effective Time and distributed in accordance with this Article VIII and set forth on an exhibit to the Escrow Agreement. Each Acquiror Indemnification Claim The Escrow shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none contributed entirely out of the limitations set forth shares of WebMD Series B Preferred Stock issuable upon the Merger in this Article VIII shall apply to any action for specific performancerespect of Sapient Capital Stock. From and after the Effective Time, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated available to compensate and indemnify WebMD and Merger Corp. and their respective officers, directors, employees, representatives, agents, shareholders controlling persons and affiliates (each an "Indemnitee") against and for any Loss suffered or incurred by an Indemnitee, as compensation paid by the Company to the optionholders if and to the extent when due, which arises out of or results from a breach of any portion of the optionholders’ portion representations, warranties, covenants or agreements of Sapient set forth in this Agreement or in any certificate or schedule delivered by Sapient pursuant to this Agreement. An Indemnitee may not receive any shares from the Escrow Fund is actually distributed unless and until a Loss Notice or Loss Notices (as defined below) identifying Indemnifiable Losses, the aggregate amount of which exceed $50,000, have been delivered to the optionholders, (ii) the right of the stockholders Escrow Agent pursuant to the stockholders’ portion of terms hereof; in such case, an Indemnitee may recover from the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 its Losses in excess of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) $50,000 in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently accordance with the foregoingterms and provisions of this Article 12.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)a) At the Effective Time, Castlight shall withhold the Escrow Amount shall be deposited into escrow from the Merger Consideration issuable pursuant to Section 1.3(a) (the aggregate amount shares of Castlight Class B Common Stock so held by Castlight from time to time, together with any non-taxable stock dividends declared and paid in respect of such shares, the “Escrow Fund”) and deposit the Escrow Agreement in accordance Fund with Section 2.9. U.S. Bank National Association, as the “Escrow Agent.” The Escrow Fund shall be governed by the provisions set forth herein and in the Escrow Agreement in substantially the form attached hereto as Exhibit L. The Escrow Fund and the Set-Off Right shall constitute partial security for the benefit of Castlight (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under this Article IX. Subject to Section 9.4, the Escrow Agent shall hold the Escrow Fund until 11:59 p.m. local time on the date (the “Escrow Release Date”) that is 12 months after the Effective Time. Except to the extent there is a cancellation of shares of Castlight Class B Common Stock held and distributed in the Escrow Fund in connection with Indemnifiable Damages in accordance with the terms of this Article VIII Agreement, shares of Castlight Class B Common Stock held in the Escrow Fund, including shares of Castlight Class B Common Stock issuable pursuant to Annex A hereto which are deposited into the Escrow Fund pursuant to Section 9.4, shall be treated by Castlight as issued and outstanding stock of Castlight, the Jiff Stockholders shall be shown as the registered owners of such shares on the certificate(s) evidencing such shares (if such shares are certificated) and the Escrow Agreement. Each Acquiror Indemnification Claim Jiff Stockholders shall be made only in accordance entitled to exercise voting rights and to receive dividends with this Article VIII respect to such shares (other than stock dividends, which shall be withheld by Castlight and included as part of the Escrow AgreementFund). An Acquiror Indemnified Party The Converting Holders shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against not receive interest or other earnings on the shares of Castlight Class B Common Stock (other than as set forth in the immediately preceding sentence) in the Escrow Fund. Notwithstanding anything Neither the Escrow Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion distribution of the Escrow Fund to any Converting Holder in accordance with Section 9.1(b), except that each Converting Holder shall be treated as compensation paid by the Company entitled to the optionholders if and assign such Converting Holder’s rights to the extent any portion of the optionholders’ portion such Converting Holder’s Pro Rata Share of the Escrow Fund is actually distributed to the optionholdersby will, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) laws of the preceding sentence is intended to ensure that the right intestacy or by other operation of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoinglaw.

Escrow Fund. To provide Simultaneously with the execution of this Agreement, Distributed Energy shall deposit with the Escrow Agent (i) by wire transfer or delivery of a fund against which an Acquiror Indemnified Party may assert claims check of indemnification under this Article VIII Distributed Energy payable to the Escrow Agent, the sum of $2,854,581.80, (an ii) a certificate for 210,601 shares of common stock of Distributed Energy and (iii) a Warrant representing warrants to purchase 412,237 shares of Distributed Energy Common Stock, such shares and Warrant to be issued in the name of Escrow Agent or its nominee, as determined pursuant to Section 2.4 of the Merger Agreement. The Escrow Agent hereby acknowledges receipt of such sum, such stock certificate and such Warrants. Such sum, together with any further sums deposited by Distributed Energy pursuant to the final sentence of Section 2.1(c) of the Merger Agreement and any interest earned thereon, are referred to herein as the “Acquiror Indemnification Claim”)Escrow Cash.” Such shares, together with any further shares deposited by Distributed Energy pursuant to the final sentence of Section 2.1(a) of the Merger Agreement are referred to herein as the “Escrow Shares.” Such Warrants are referred to herein as the “Escrow Warrants.” The Escrow Cash, the Escrow Amount shall be deposited into escrow pursuant Shares and Escrow Warrants are referred to herein as the “Escrow Agreement in accordance with Section 2.9. Fund.” The Escrow Fund shall be held as a trust fund and distributed shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto. The Escrow Cash shall be invested in accordance with Section 5. The Escrow Agent agrees to hold the Escrow Fund in an escrow account subject to the terms and conditions of this Article VIII Agreement. The Escrow Cash, Escrow Shares and Escrow Warrants shall be initially attributed to the Indemnifying Securityholders as set forth on Attachment A. Thereafter, such apportionment shall be adjusted upon any event affecting the Escrow Fund, including without limitation the payment of interest on Escrow Cash, the sale of Escrow Shares upon the request of an Indemnifying Securityholder as provided below, the exercise of an Escrow Warrant as provided below or payment of a claim on the Escrow Fund (although the Responsibility Percentages shall not be so adjusted). For example, if an Indemnifying Securityholder directs the Escrow Agent to sell Escrow Shares attributable to such Indemnifying Securityholder, the Escrow Shares attributable to such Indemnifying Securityholder shall be reduced and the Escrow Agreement. Each Acquiror Indemnification Claim Cash attributable to such Indemnifying Securityholder shall be made only in accordance with this Article VIII and increased. At any time Escrow Shares are attributed to an Indemnifying Securityholder, such Indemnifying Securityholder may cause the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against Agent to sell any or all of the Escrow Fund. Notwithstanding anything Shares attributed to it as set forth on Attachment A hereto by notice of such election to the contrary contained in this Agreement, none Escrow Agent. The proceeds from any such sale shall become Escrow Cash attributable to such Indemnifying Securityholder. No such sale of Escrow Shares attributed to an Indemnifying Securityholder shall change the limitations Responsibility Percentages set forth in this Article VIII shall apply on Attachment A. At any time Escrow Warrants are attributed to any action for specific performancean Indemnifying Securityholder, injunctive relief or other equitable remedy. Acquiror, Sub and such Indemnifying Securityholder may cause the Company agree for all tax purposes: Escrow Agent to exercise such Escrow Warrants by providing (i) the optionholders’ portion notice of such election to the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholdersAgent, (ii) sufficient instructions in such notice regarding the right of the stockholders to the stockholders’ portion of desired exercise for the Escrow Fund shall be eligible Agent to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of complete the Code exercise, and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as if the owner exercise is not a cashless exercise, cash equal to the aggregate exercise price of the Warrants being exercised (which may be paid either to the Escrow Fund solely Agent for tax purposes, and all interest and earnings earned from remittance to the investment and reinvestment Distributed Energy upon exercise of the Escrow Amount, Warrants or any portion thereof, shall be allocable directly to the Acquiror pursuant to Section 468B(g) of Distributed Energy, in which case the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of Distributed Energy shall provide prompt notice the Escrow Fund is actually distributed Agent upon receipt of such cash). The shares of Distributed Energy common stock acquired upon exercise of any such Escrow Warrant shall become Escrow Shares attributable to such Indemnifying Securityholder. No such exercise of Escrow Warrants attributed to an Indemnifying Securityholder shall change the stockholders, interest may be imputed Responsibility Percentages set forth on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.Attachment A.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims Notwithstanding anything to the contrary in the other provisions of indemnification under this Article VIII 1, Acquirer shall withhold from the gross cash consideration otherwise payable to each Indemnifying Party (an “Acquiror Indemnification Claim”which, in the case of a Company Shareholder that is a holder of Unvested Company Shares, shall be funded solely by the portion of the closing consideration for such Company Shareholder that is vested immediately prior to Closing) in accordance with Section 1.1(a), such Indemnifying Party’s Pro Rata Share of the Adjustment Escrow Amount and the Indemnity Escrow Amount. At the Closing, Acquirer shall initiate a wire to be deposited (or cause to be deposited) the Adjustment Escrow Amount and the Indemnity Escrow Amount with the Escrow Amount shall be deposited into Agent, as escrow agent pursuant to the Escrow Agreement Agreement, to be held by the Escrow Agent in accordance with Section 2.9and subject to the provisions of this Agreement and the Escrow Agreement. The Adjustment Escrow Fund Amount plus any interest or earning paid thereon in accordance with the Escrow Agreement (the “Adjustment Escrow Fund”) shall be available to compensate Parent for any Aggregate Consideration Shortfall under Section 1.6, and shall be held and distributed in accordance with this Article VIII Section 1.6 and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only The Indemnity Escrow Amount plus any interest or earnings paid thereon in accordance with this the Escrow Agreement (the “Indemnity Escrow Fund” and, together with the Adjustment Escrow Fund, the “Escrow Fund”). Subject to Section 9.2, the Indemnity Escrow Fund shall constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Indemnifying Parties under Article VIII 9, and shall be held and distributed in accordance with Section 9.1 and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against The adoption of this Agreement and the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none approval of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid Share Purchase by the Company to the optionholders if and to the extent any portion Shareholders shall constitute, among other things, approval of the optionholders’ portion Adjustment Escrow Amount and the Indemnity Escrow Amount, the withholding of the Adjustment Escrow Fund is actually distributed to Amount and the optionholders, (ii) Indemnity Escrow Amount by Acquirer and the right appointment of the stockholders to the stockholdersShareholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror Agent. Parent shall be treated as the owner of the Escrow Fund solely and for tax Tax purposes, and shall report all interest and earnings income earned from the investment and reinvestment thereon; provided, however, that within 30 days of the Escrow Amountend of each calendar year, or any portion thereof, Parent shall be allocable entitled to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of receive from the Escrow Fund is actually distributed a Tax distribution equal to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 25% of the Code; and (v) in no event shall the total amount of income earned on the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingfor such year.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims (a) As partial security for the indemnity provided for in Section 9.2 of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Agreement, the Escrow Amount Shares (defined in Section 0(c) hereof) shall be registered in the names of the Holders but shall be deposited into (together with assignments in blank executed by the Holders) with First Trust of California, N.A. (or other institution selected by FIC with the reasonable consent of the Holders' Representatives) as escrow pursuant agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in an Escrow Agreement among FIC, the Escrow Agent and the Holders (the "Escrow Agreement") substantially in the form attached hereto as Exhibit L. Subject to the terms of Section 9.3(b) of this Agreement, upon compliance with the terms hereof and the terms of the Escrow Agreement FIC and the other FIC Indemnitees shall be entitled to obtain indemnification from the Escrow Fund for all Indemnifiable Damages covered by the indemnity provided for in Section 9.2 of this Agreement. From and after the Closing, upon the valid exercise of Subject Options held by the Subject Optionholders as specified in the Escrow Agreement, FIC shall deliver to the Escrow Agreement Agent a certificate or certificates issued in accordance with Section 2.9. The the name of such optionholder (or the Escrow Fund shall be held and distributed Agent under the circumstances specified in accordance with this Article VIII and the Escrow Agreement) representing additional Escrow Shares, to the extent set forth in the Escrow Agreement. Each Acquiror Indemnification Claim The adoption and approval of this Agreement by RMT's shareholders shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion constitute approval of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if Agreement and to the extent any portion of all of the optionholders’ portion arrangements relating thereto, including without limitation the placement of the Escrow Fund is actually distributed to Shares in escrow and the optionholders, (ii) the right appointment of the stockholders Holders' Representatives to the stockholders’ portion act for and on behalf of Holders to give and receive notices and communications, to authorize delivery of any shares of FIC Common from the Escrow Fund shall be eligible in satisfaction of claims by FIC Indemnitees, to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code object to such deliveries, to agree to, negotiate and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposesenter into settlements and compromises of, and all interest demand arbitration and earnings earned from the investment comply with orders of courts and reinvestment awards of the Escrow Amountarbitrators with respect to such claims, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to take all actions necessary or appropriate in the extent any amount judgment of such representatives for the stockholders’ portion accomplishment of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), the Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with Section 2.92.9(b). The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII As provided in Section 1.8, promptly after the Effective Time, SCM shall deposit the Closing Escrow Amount with Greater Bay Trust Company (an “Acquiror Indemnification Claim”or another institution acceptable to SCM and the Shareholders' Agent (as defined in Section 8.2(g) below)), as Escrow Agent (the "Escrow Agent"). In addition, prior to the payment of any Contingent Merger Consideration payable to the Shareholders pursuant to Section 1.14, SCM shall deposit 15% of each Contingent Merger Consideration payment with the Escrow Amount shall be deposited into escrow pursuant Agent. All amounts so paid to the Escrow Agreement in accordance with Section 2.9Agent shall constitute, collectively, an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. Each Shareholder's portion of the Closing Escrow Amount or aggregate Contingent Merger Consideration contributed to the Escrow Fund shall correspond to such Shareholder's Proportionate Interest. The Escrow Fund shall be held available to compensate SCM and distributed in accordance with this Article VIII and its affiliates (i) for the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything payment to SCM of any adjustments to the contrary contained in Merger Consideration pursuant to Section 1.13 of this Agreement, none to the extent such adjustments to the Merger Consideration are not made on or prior to the Closing, and (ii) subject to paragraph (o), for any claim, loss, expense, liability or other damage, including reasonable attorneys' fees and disbursements in connection with any action, suit or proceeding, to the extent of the limitations set forth in this Article VIII shall apply to any action for specific performanceamount of such claim, injunctive relief loss, expense, liability or other equitable remedy. Acquirordamage (collectively "Losses") that SCM or any of its affiliates has actually incurred (or, Sub and in the case of an extension of the Escrow Period pursuant to Section 8.2(b)(ii), reasonably anticipates incurring), by reason of the breach by the Company agree or the Shareholders of any representation, warranty, covenant or agreement of the Company or the Shareholders contained herein (including the Company Disclosure Schedule); Each Shareholder acknowledges that notwithstanding that such Shareholder has not made the representations and warranties made by the Company, it is understood and agreed that each Shareholder must indemnify SCM jointly and severally for all tax purposes: items (i) and (ii) described in the optionholders’ portion immediately preceding sentence; provided, however, that claims for Losses incurred as a result of a breach by a specific Shareholder ("Specific Shareholder Claims") shall be satisfied solely out of such Shareholder's Proportionate Interest in the Escrow Fund until such Proportionate Interest in the Escrow Fund is exhausted and no other Shareholder's Proportionate Interest in the Escrow Fund shall be treated as compensation paid by used to satisfy any such Losses. SCM and the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the optionholders Effective Time, which if and resolved at the Effective Time would have led to a reduction in the extent aggregate Merger Consideration. Notwithstanding the foregoing, SCM shall not be entitled to receive any portion disbursement with respect to any Loss or Losses under Section 8.2(a)(ii) arising in respect of any individual occurrence or circumstance unless the amount of the optionholders’ portion aggregate Losses of SCM under Section 8.2(a)(ii) shall exceed $150,000, and then SCM shall be entitled to recover from the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall only the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) its Losses in excess of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing$150,000.

Escrow Fund. To provide a fund against which At the Effective Time, Parent shall deposit with JPMorgan Chase Bank, in its capacity as escrow agent (the "Escrow Agent"), by wire transfer of immediately available funds, (i) an Acquiror Indemnified Party may assert claims amount equal to $7,000,000 in cash (the "Working Capital Hold-Back"), (ii) an amount equal to $29,000,000 in cash (the "Indemnification Hold-Back"), (iii) an amount equal to $2,000,000 in cash (the "Shareholders' Representative Hold-Back") and (iv) an amount in cash equal to twenty-five percent (25%) of indemnification under the product of the number of Dissenting Shares and the Per Share Dissenter Consideration (the "Dissenters' Hold-Back") and together with the amount of the Indemnification Hold-Back, the amount of the Working Capital Hold-Back and the amount of the Shareholders' Representative Hold-Back, collectively the "Escrow Fund"), to be governed in accordance with the terms of this Article VIII Agreement and the escrow agreement in substantially the form attached hereto as Exhibit C (an “Acquiror Indemnification Claim”the "Escrow Agreement"), among Parent, the Escrow Agent and the Shareholders' Representative. The Working Capital Hold-Back and, in the event that the Working Capital Hold-Back is insufficient to satisfy any Adjustment Amount owed to Parent, the Indemnification Hold-Back, shall be deposited into escrow used as a source of satisfaction of any amounts payable to Parent pursuant to Section 2.4(f). Any portion of the Working Capital Hold-Back that is not necessary to satisfy any payment pursuant to Section 2.4(f) shall be released from the Escrow Agreement Fund on the Working Capital Hold-Back Release Date (as defined in Section 2.5 below) and delivered to the Paying Agent (such amount, if any, on such date, the "Working Capital Hold-Back Consideration") to be distributed to all Shareholders, the holder of Phantom Stock and the holders of Warrants who have signed an Acknowledgement Form ("Warrantholders") entitled to receive a portion of the consideration in accordance with the terms of this Agreement. The Indemnification Hold-Back, in addition to being used to satisfy any amounts owed to Parent pursuant to Section 2.92.4(f) to the extent provided in Section 2.1(b), shall be used as a source of satisfaction of any amounts payable to Parent and its affiliates pursuant to Section 9.2. Any portion of the Indemnification Hold-Back that is not necessary to satisfy any payment or unresolved bona fide claim, demand, action, suit, investigation, inquiry or proceeding (each being a "Claim")) pursuant to Section 9.2 shall be released on April 4, 2006, and shall be delivered to the Paying Agent (such amount, if any, on such date, the "Escrow Consideration") to be distributed to all Shareholders, the holder of Phantom Stock and all Warrantholders entitled to receive a portion of the Escrow Consideration in accordance with the terms of this Agreement; provided, however, that any amounts remaining in the Escrow Fund on that date that are subject to a pending Claim shall remain in the Escrow Fund until such Claim is finally resolved. The Escrow Fund shall terminate when all funds in the Escrow Fund are distributed to Parent or the Paying Agent pursuant to the terms of this Agreement. The Shareholders' Representative Hold-Back shall be held used solely and distributed in accordance with exclusively to reimburse the Shareholders' Representative pursuant to the terms of Section 10.1(c) of this Article VIII Agreement. Any portion of the Shareholders' Representative Hold-Back that is not necessary to satisfy any reimbursement pursuant to Section 10.1(c) shall be released from the Escrow Fund on the later of April 4, 2006 and the Escrow Agreement. Each Acquiror Indemnification date upon which any potential expenses relating to a Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company have been settled, and delivered to the optionholders Paying Agent (such amount, if any, on such date, the "Shareholders' Representative Hold-Back Consideration") to be distributed to all Shareholders, the holder of Phantom Stock and the Warrantholders entitled to the extent any receive a portion of the optionholders’ portion consideration in accordance with the terms of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror this Agreement. The Dissenters' Hold-Back shall be treated as follows (all amounts, if any, released to the owner Paying Agent to be distributed to all Shareholders, the holder of Phantom Stock and all Warrantholders entitled to receive a portion of the Escrow Fund solely for tax purposesconsideration in accordance with the terms of this Agreement, and all interest and earnings earned from the investment and reinvestment of ("Dissenters' Hold-Back Consideration")): Parent shall cause the Escrow AmountSurviving Corporation to deliver or mail, or any portion thereofwithin ten (10) days after the Effective Time, shall be allocable to each Regular Shareholder who has filed with the Company, prior to the Acquiror pursuant Company Shareholder Meeting (as herein defined), a written objection to the Merger that complies with the requirements set forth in Section 468B(g5.12.A.(1)(a) of the Code and Proposed Treasury Regulation TBCA, but only if such Shareholder has not voted for the Merger, written notice that the Merger has been effected, in compliance with the provisions of the TBCA (the "Merger Notice"). If the Surviving Corporation does not deliver or mail the Merger Notice in compliance with Section 1.468B-8; (iv5.12.A.(1)(a) if and of the TBCA, all of the Dissenters' Hold-Back shall be promptly released to the extent any amount Paying Agent to be distributed to all Shareholders, the holder of the stockholders’ Phantom Stock and all Warrantholders entitled to receive a portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) consideration in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently accordance with the foregoingterms of this Agreement.

Escrow Fund. To provide a fund against which Prior to or simultaneously with the ----------- Closing, the Stockholders' Representative and Parent shall enter into an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII escrow agreement (the "Escrow Agreement") with an “Acquiror Indemnification Claim”escrow agent selected by Parent and reasonably acceptable to the Stockholders' Representative (the "Escrow Agent"), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Amount Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the "Escrow Account"). Any Escrow Shares in the Escrow Account are referred to herein as the "Escrow Fund". In connection with such deposit of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each such holder's pro rata interest in the Escrow Fund as determined as of the Closing by reference to the number of Parent Shares distributed in exchange for shares of Company Stock to such holder at the Closing (including, in the case of Michael Bennett or his assignees, any shares of Parent Common Stock ixxxxx xx Xx. Xxnnett or his assignees pursuant to Section 6.16, but excluding xxx xxxxxx of Parent Common Stock issued to persons other than Michael Bennett or his assignees pursuant to Section 6.16), relative xx xxx xxxxxx xf Parent Shares distributed in exchange for Company Stock to all stockholders of the Company (the "Company Stockholders") at the Closing (including any shares of Parent Common Stock issued to Mr. Bennett or his assignees pursuant to Section 6.16, but excluding xxx xxxxxx of Parent Common Stock issued to persons other than Michael Bennett or his assignees pursuant to Section 6.16), without axx xxx xx xxx Xompany Stockholders. Distributions of any Escrow Shares from the Escrow Account shall be deposited into escrow pursuant to governed by the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held terms and distributed in accordance with this Article VIII and conditions of the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with The adoption of this Article VIII Agreement and the Escrow Agreement. An Acquiror Indemnified Party approval of the Merger by the Company Stockholders shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against constitute approval of the Escrow Fund. Notwithstanding anything to Agreement and of all the contrary contained in this Agreementarrangements relating thereto, none including, without limitation, the placement of the limitations set forth Escrow Shares in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub escrow and the Company agree for all tax purposes: (i) appointment of the optionholders’ Stockholders' Representative. No portion of the Escrow Fund shall be treated as compensation paid by the contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible unvested or subject to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 any right of repurchase, risk of forfeiture or other condition in favor of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingSurviving Corporation.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims As partial security for the indemnity provided for in Section 7.2 hereof and by virtue of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Agreement, the Merger Shareholders will be deemed to have received and deposited with the Escrow Agent the Escrow Amount without any act of any Merger Shareholder. The General Escrow Amount shall be deposited into escrow pursuant increased by a percentage of the aggregate number of shares of Parent Common Stock to be issued in the Merger to the Escrow Agreement Merger Shareholders equal to the quotient obtained by dividing (1) the quotient, obtained by dividing (x) the amount of Company's Debt on the Closing Date in accordance with Section 2.9excess of $2,645,000 by (y) the Trading Price, by (2) the aggregate number of shares of Parent Common Stock to be issued to Merger Shareholders in the Merger. The General Escrow Fund shall be held and distributed Amount in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated available to compensate the Indemnified Parties, or any of them, for any claims by such Indemnified Parties for any Losses suffered or incurred by them pursuant to Section 7.2 and the Dissenters Rights Escrow Amount shall be available to compensate the Indemnified Parties only for Losses suffered or incurred by them pursuant to Section 7.2(vi); provided, however, that if the Escrow Period (as compensation paid defined below) has terminated, and a claim for Losses is made with respect to (i) fraudulent breaches by the Company of its representations, warranties or covenants, or (ii) breaches by the Company of the representations and warranties in Section 2.9 hereof, then, subject to Section 7.5, the claim shall be made directly against the Merger Shareholders. Within three days after the Closing, the Escrow Amount, without any act of the Merger Shareholders, will be deposited with Chase Manhattan Bank and Trust Company, National Association, as Escrow Agent hereunder, or another institution acceptable to Parent and the Shareholder Representative (as defined in Section 7.4 hereof), such deposit of the Escrow Amount shall constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof and prior to the optionholders Closing, and such later execution, if so executed after the date hereof, shall not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. Nothing in this Section 7.3 shall limit the liability of the Company for any breach or inaccuracy of any representation, warranty or covenant contained in this Agreement if the Merger does not close. Parent may not receive any proceeds from the Escrow Fund unless and until Losses which have actually been incurred by the Indemnified Parties and which would be indemnifiable under Section 7.2 hereof but for the provisions of this Section 7.3(a) in excess of $50,000 in the aggregate (the "Basket Amount") has or have been delivered to the extent any portion Escrow Agent as provided in Section 7.3(d) hereof, in which case Parent shall be entitled to recover all Losses so incurred in excess of the optionholders’ portion Basket Amount. Notwithstanding the foregoing, Parent shall be entitled to receive payments out of the Escrow Fund is actually distributed for, and the Basket Amount shall not apply to any and all claims or payments made with respect to the optionholdersmatters referred to in Section 7.2(iii), (ii7.2(iv), 7.2(v) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing7.2(vi).

Escrow Fund. To provide As soon as practicable after the Closing Date, Buyer ----------- shall deposit with the Escrow Agent a fund against which an Acquiror Indemnified Party may assert claims certificate representing [***] shares of indemnification under this Article VIII Buyer's Series B-1 Preferred Stock registered in the name of Xxxxxx Trust Company of California as Escrow Agent, (an “Acquiror Indemnification Claim”)the "Escrow Shares" and, as so ------------- deposited, the "Escrow Amount shall be deposited into escrow Fund"). Exhibit A hereto sets forth the name and address ----------- --------- of each Seller Stockholder and the number of Escrow Shares contributed to the * Material has been omitted pursuant to a request for confidential treatment, and such material has been filed separately with the SEC. Escrow Agreement in accordance with Fund on behalf of each such Seller Stockholder pursuant to Section 2.99 of the Purchase Agreement. The number of Escrow Fund shall be held and distributed in accordance with this Article VIII and Shares contributed on behalf of each Seller Stockholder divided by the total amount of Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely Shares contributed by offset against the Escrow Fund. Notwithstanding anything all Seller Stockholders to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated each such Seller Stockholder's "proportionate interest" in the Escrow Shares. The Escrow Fund ---------------------- shall be held as compensation paid by the Company an escrow fund and shall not be subject to the optionholders if and any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto. Escrow Agent agrees to the extent any portion of the optionholders’ portion accept delivery of the Escrow Fund is actually distributed and to hold such Escrow Fund in escrow subject to the optionholdersterms and conditions of this Agreement. Attached hereto as Exhibit B are the names, (ii) the right titles and specimen --------- signatures of each of the stockholders persons who are authorized on behalf of Buyer, Seller and Seller's Representative to execute and deliver written notices and instructions to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingAgent.

Escrow Fund. To provide a fund against which PNC Bank, National Association, or another Person selected by Acquiror, shall serve as the escrow agent in connection with the Merger (the “Escrow Agent”) pursuant to an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII Escrow Agreement in substantially the form attached hereto as Exhibit J (an the “Acquiror Indemnification ClaimEscrow Agreement”), which will be entered into at the Closing. At the Closing, (a) Acquiror shall retain and holdback an amount in cash equal to each Indemnifying Party’s Pro Rata Portion of the Escrow Amount from the cash consideration otherwise payable to such Person at the Closing pursuant to Section 1.3(b) and Section 1.3(e)(i), and (b) Acquiror shall deposit, or cause to be deposited, with the Escrow Agent such Escrow Amount into an account designated by the Escrow Agent in a written notice delivered to Acquiror at least two (2) Business Days prior to the Closing Date (the Escrow Amount in such account, together with any dividends and income earned on thereon, as may be reduced from time to time, the “Escrow Fund”), and, upon such deposit, Acquiror shall be deposited into escrow pursuant deemed to have contributed to the Escrow Agreement in accordance with Section 2.9Fund, on behalf of each Indemnifying Party, his, her, or its Pro Rata Portion of the Escrow Amount. The Escrow Fund shall be held available to compensate the Indemnified Parties for any claims by such parties for any Losses suffered or incurred by them and for which they are entitled to recovery under Section 2.4 and Article IX and, solely with respect to each Indemnified Party’s Pro Rata Portion of the Escrow Fund, recovery under such Indemnified Party’s Holder Support Agreement, and shall be distributed in accordance with the terms and conditions of this Article VIII Agreement and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local lawAgreement and, as appropriate; (iii) applicable, the Holder Support Agreements. The parties hereto agree that Acquiror shall be treated as the owner of the cash in the Escrow Fund solely for tax purposes, all Tax purposes until such funds are disbursed pursuant to this Agreement and the Escrow Agreement and that all interest and earnings on or other taxable income, if any, earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of such cash in the Escrow Fund is actually distributed pursuant to the stockholders, interest may Escrow Agreement shall be imputed on such amount, treated for Tax purposes as required by Section 483 or 1274 reportable income of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.

Escrow Fund. To provide At the Effective Time, each holder of shares of Company Capital Stock (each, a fund against which an Acquiror Indemnified Party "COMPANY STOCKHOLDER" and collectively, the "COMPANY STOCKHOLDERS") will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may assert claims be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Amount), without any act of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)any Company Stockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Company Stockholder, will be deposited with U.S. Bank Trust National Association (or other institution acceptable to Parent and the Securityholder Agent (as defined in Section 7.2(g) below)) as Escrow Agent (the "ESCROW AGENT"), such deposit to constitute an escrow fund (the "ESCROW FUND") to be governed by the terms set forth herein and to be maintained at Parent's cost and expense. The portion of the Escrow Amount contributed on behalf of each Company Stockholder shall be deposited into escrow pursuant in proportion to the aggregate Parent Common to which such holder would otherwise be entitled under Section 1.6(a) and shall be in the respective amounts listed opposite each Company Stockholder's name listed in a schedule to be executed by the Company and delivered to Parent at Closing (the "ESCROW SCHEDULE"). No shares of Parent Common contributed to the Escrow Agreement Fund may be unvested or subject to any right of repurchase, risk of forfeiture, or other condition in accordance with Section 2.9favor of Parent or the Surviving Corporation; PROVIDED, HOWEVER, that to the extent a Company Stockholder does not hold shares that are vested or free of a right of repurchase, risk of forfeiture, or other condition, the shares of Parent Common to be deposited in the Escrow Fund on behalf of such Company Stockholder shall be the first shares of Parent Common scheduled to vest or to be released from such rights, risks, or conditions. The Escrow Fund shall be held available to compensate Parent and distributed its affiliates (including the Surviving Corporation) for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "LOSS" and collectively "LOSSES") incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in accordance any certificate, instrument, schedule or document delivered by the Company in connection with this Article VIII and Agreement or the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance Merger) or (ii) any failure by the Company to perform or comply with this Article VIII and any covenant or agreement contained herein; PROVIDED, HOWEVER, that claims arising out of an inaccuracy or breach of any representation or warranty or any covenant or agreement of the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary Company contained in this AgreementAgreement or in any certificate, none of the limitations set forth in this Article VIII shall apply to any action for specific performanceinstrument, injunctive relief schedule or other equitable remedy. Acquiror, Sub and document delivered by the Company agree for all tax purposes: at the Closing in connection with this Agreement or the Merger must be asserted on or before 5:00 p.m. (iCalifornia Time) on the optionholders’ date that is one year following the Closing Date (the "EXPIRATION DATE"). No portion of the Escrow Fund Amount shall be treated contributed in respect of any Company Options. Except for Excess Third Party Expenses (as compensation paid by the Company to the optionholders if and to the extent defined in Section 9.2), Parent may not receive any portion of the optionholders’ portion of shares from the Escrow Fund is actually distributed unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $150,000, have been delivered to the optionholdersEscrow Agent as provided in paragraph (d), (ii) and either there is no objection thereto or any objection has been resolved in accordance with the right provisions of the stockholders to the stockholders’ portion of this Article VII; in such case, Parent may recover from the Escrow Fund shall be eligible all Losses, without regard to be treated as deferred contingent purchase price eligible the $150,000 threshold, for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, which there is no objection or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) objection has been resolved in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently accordance with the foregoingprovisions of this Article VII.

Escrow Fund. To provide Prior to the Effective Time, Teletrac shall issue and deliver or cause to be delivered, directly to an escrow agent to be selected by the parties prior to the Effective Time (the "ESCROW AGENT"), a fund against certificate representing 1,505,712 shares of Teletrac Common Stock in respect of the Disputed Claims, less such number of shares of Teletrac Common Stock as may have been distributed after the date hereof and before the Effective Time in respect of Disputed Claims which have been finally resolved, as provided by the Plan (the shares of Teletrac Common Stock so issued and delivered to the Escrow Agent being the "ESCROWED SHARES"). Upon compliance by the Escrow Agent with the provisions of Section 2.4 hereof, Trafficmaster shall pay or cause to be paid to the Escrow Agent the Initial Cash Consideration payable in respect of the Escrowed Shares (the "ESCROW AMOUNT"), which shall be held by the Escrow Agent pursuant to the terms set forth herein and an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)escrow agreement to be entered into by and among Trafficmaster, Teletrac, the Escrow Agent, and any other parties which Trafficmaster, Teletrac and the Escrow Agent shall agree, in a form to be agreed to by such parties which shall not be inconsistent with the Plan (the "ESCROW AGREEMENT") and released (together with interest actually earned thereon) upon final resolution of each Disputed Claim in proportion to the number of Escrowed Shares allocable thereto. If any Disputed Claims are not resolved prior to the delivery by Trafficmaster of any Earn-Out Amount, the portion of such Earn-Out Amount allocable to the Escrowed Shares shall be deposited into delivered to the Escrow Agent and held in an escrow fund pursuant to the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held and distributed in accordance with this Article VIII and terms of the Escrow Agreement. Each Acquiror Indemnification Claim If any Disputed Claims are resolved prior to the delivery by Trafficmaster of any Earn-Out Amount, the portion of such Earn-Out Amount allocable to the Escrowed Shares shall be made only paid by Trafficmaster in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none provisions of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and Bankruptcy Court approving the Company agree for all tax purposes: (i) the optionholders’ portion resolution of the Escrow Fund shall be treated Disputed Claims. Until all Disputed Claims are finally resolved as compensation paid by provided in the Company to the optionholders if Plan and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of Surviving Corporation retains decision making authority with respect to such Disputed Claims, the stockholders Surviving Corporation agrees to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiroruse commercially reasonable efforts to prosecute, Sub and the Company shall file all Tax Returns consistently with the foregoingdefend against and/or settle such Disputed Claims in good faith.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims Buyer shall withhold from the Purchase Price the following (collectively referred to as the "Escrow Funds" and separately as named in each subsection herein): (i) the sum of indemnification under this Article VIII One Hundred Eighty Seven Thousand Five Hundred Dollars (an “Acquiror Indemnification Claim”), $187,500) in cash (the "First Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with Section 2.9. The Fund") and such First Escrow Fund shall be held as collateral for Seller's indemnification obligations pursuant to Section 9 of this Agreement; (ii) the sum of One Hundred Sixty-four Thousand Three Hundred Sixty-five Dollars and distributed Forty Cents ($164,365.40) in accordance with this Article VIII and cash (the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the "Second Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub ") and the Company agree for all tax purposes: (i) the optionholders’ portion of the such Second Escrow Fund shall be treated held as compensation paid by collateral for Seller's performance and satisfaction of Seller's obligations set forth in Section 8.5; (iii) the Company to sum of Sixty Thousand Dollars ($60,000) in cash (the optionholders if "Third Escrow Fund") and to the extent any portion of the optionholders’ portion of the such Third Escrow Fund is actually distributed to the optionholders, Shall be held as collateral for Seller's performance and satisfaction of Seller's obligations set forth in Section 8.6; and (iiiv) the right sum of Thirty Three Thousand Eight Hundred Dollars ($33,800) in cash (the stockholders to the stockholders’ portion "Fourth Escrow Fund") and such Fourth Escrow Fund Shall be held as collateral for Seller's performance and satisfaction of the Seller's obligations set forth in Section 8.4. The First Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under governed in accordance with Section 453 9 of this Agreement, the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror Second Escrow Fund shall be treated as governed by Section 8.5 of this Agreement, the owner Third Escrow Fund shall be governed by Section 8.6 of this Agreement, and the Fourth Escrow Fund shall be governed by Section 8.4 of this Agreement. Each of the Escrow Fund solely for tax purposes, and all Funds shall accrue interest and earnings earned from at the investment and reinvestment rate of five percent (5%) per annum in favor of the Seller. Upon termination or payment of any of the Escrow AmountFunds, or any portion thereof, Buyer shall be allocable to pay Seller the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, accrued interest may be imputed on earned upon such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingfund.

Escrow Fund. To provide (a) Pursuant to Section 2.2(e) of the Merger Agreement, at the Closing, the Emdeon Entities shall deliver to the Escrow Agent (i) a fund against certification in the form attached hereto as Exhibit A (the “Equity Escrow Certification”) (which Equity Escrow Certification may be delivered and/or replaced from time to time in accordance with the terms hereof) executed by the Emdeon Entities and the Members’ Representative evidencing the 758,000 EBS Master Units held in escrow hereunder (which EBS Master Units are uncertificated) (the “Escrowed EBS Master Units”) and (ii) $4,750,000 in cash by wire transfer to an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII account designated in writing by the Escrow Agent (an the “Acquiror Indemnification ClaimEscrowed Cash”). Subject to the terms hereof, the Escrowed Cash, Escrowed EBS Master Units and the Equity Escrow Amount Certification shall be deposited into escrow pursuant to with the Escrow Agreement Agent, with the Escrowed Cash held for the benefit of, and with beneficial ownership of the Escrowed EBS Master Units expressly allocated among, certain Company Members as set forth in Schedule A attached hereto in accordance with Section 2.9their pro rata interests listed on Schedule A hereto (collectively, the “Escrow Beneficiary Members”). The Escrowed EBS Master Units and Escrowed Cash shall constitute the “Escrow Fund” and shall be governed by the terms set forth herein. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything available, pursuant to the contrary contained in this Agreementterms and conditions hereof, none to satisfy claims of the limitations set forth in this Emdeon Indemnified Persons pursuant to Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion VII of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingMerger Agreement.

Escrow Fund. To provide a fund against (a) Prior to or simultaneously with the Closing, the Stockholders' Representative and Buyer shall enter into the Escrow Agreement with the Escrow Agent. Pursuant to the terms of the Escrow Agreement, at the Closing, Buyer shall deposit the Escrow Fund into an escrow account, which an Acquiror Indemnified Party may assert claims account is to be managed by the Escrow Agent (the "Escrow Account"). In connection with such deposit of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)the Escrow Fund with the Escrow Agent and as of the Effective Time, each holder of Target Common Shares shall be deemed to have contributed to the Escrow Amount an amount per share equal to the Common Per Share Escrow Amount, the Berger Family 1998 Revocable Trust shall be deposited into escrow pursuant deemed to have contributed xx xxe Escrow Amount an amount per share equal to the Series A-1(B) Per Share Escrow Amount, Telkoor Telecom Ltd. shall be deemed to have contributed to the Escrow Agreement in accordance with Section 2.9Amount an amount per share equal to the Series A-1(T) Per Share Escrow Amount, each holder of Target Series A-2 Shares shall be deemed to have contributed to the Escrow Amount an amount per share equal to the Series A-2 Per Share Escrow Amount, and each holder of Target Series B Shares shall be deemed to have contributed to the Escrow Amount an amount per share equal to the Series B Per Share Escrow Amount, without any act of the Target Stockholders. The Distributions of any of the Escrow Fund from the Escrow Account shall be held governed by the terms and distributed in accordance with this Article VIII and conditions of the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with The adoption of this Article VIII Agreement and the Escrow Agreement. An Acquiror Indemnified Party approval of the Merger by the Target Stockholders shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against constitute approval of the Escrow Fund. Notwithstanding anything to Agreement and of all the contrary contained in this Agreementarrangements relating thereto, none including, without limitation, the placement of the limitations set forth Escrow Fund in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub escrow and the Company agree for all tax purposes: (i) appointment of the optionholders’ Stockholders' Representative. No portion of the Escrow Fund shall be treated as compensation paid by the contributed in respect of any Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, Option or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 warrant or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the other security exercisable or convertible into Company shall file all Tax Returns consistently with the foregoingStock.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)At the Effective Time, each Stockholder will be deemed to have received and consented to the deposit with the Escrow Amount shall be deposited into escrow Agent (as defined below) of the Escrow Shares pursuant to the Escrow Agreement Agreement, without any act required on the part of the Stockholder. As soon as practicable after the Effective Time, the Escrow Shares, without any act required on the part of any Stockholder, will be deposited with an escrow agent acceptable to Purchaser and the Representative (as defined below) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. The portion of the Escrow Amount contributed on behalf of each Stockholder shall be in accordance with proportion to the aggregate Purchaser Common Stock which such holder would otherwise be entitled to receive under Section 2.93.1, which respective percentage interest (the "Percentage Interest") will be determined as of the Effective Time and set forth on an exhibit to the Escrow Agreement. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none contributed entirely out of the limitations set forth shares of Purchaser Common Stock issuable upon the Merger in this Article VIII shall apply to any action for specific performancerespect of GNN Capital Stock. From and after the Effective Time, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated available to compensate and indemnify Purchaser and the Surviving Corporation and their respective officers, directors, employees, representatives, agents, stockholders controlling persons and Affiliates (each a "Purchaser Indemnitee") against and for any Loss suffered or incurred by a Purchaser Indemnitee, as compensation paid by the Company to the optionholders if and to the extent when due, which arises out of or results from a breach of any portion of the optionholders’ portion representations, warranties, covenants or agreements of GNN set forth in this Agreement or in any document delivered by GNN pursuant to this Agreement; provided, however, that for purposes of determining whether or not GNN has breached any of its representations and warranties in this Agreement, exceptions and qualifications for Material, Materiality or Material Adverse Effect and similar expressions shall be disregarded. A Purchaser Indemnitee may not receive any shares from the Escrow Fund is actually distributed unless and until a Loss Notice or Loss Notices (as defined below) identifying Indemnifiable Losses, the aggregate amount of which exceed $500,000 have been delivered to the optionholders, (ii) the right of the stockholders Escrow Agent pursuant to the stockholders’ portion of terms hereof; in such case, an Indemnitee may recover from the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 its Losses in excess of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) $500,000 in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently accordance with the foregoingterms and provisions of this Article 14.

Escrow Fund. To provide a fund against which an As soon as practicable after the Effective Time, ----------- Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), shall deposit with the Escrow Amount shall be deposited into escrow Agent: 41,554.8373 shares of Acquiror Common Stock registered in the name of Escrow Agent, which is equal to fifteen percent (15%) of the shares of Acquiror Common Stock that each Target Stockholder is entitled to receive in the Merger, pursuant to Section 1.6(a) of the Merger Agreement (the "Initial Escrow Agreement Shares"). In addition, from time to --------------------- time thereafter, Acquiror shall deposit with Escrow Agent additional shares of Acquiror Common Stock or other equity securities issued or distributed by Acquiror (including shares issued upon a stock split) in respect of the Initial Escrow Shares (the "New Shares" and, together with the Initial Escrow Shares, ---------- the "Escrow Shares") subject to and in accordance with Section 2.96.6 of the Merger ------------- Agreement. When and if cash dividends on Escrow Shares in the Escrow Fund (the "Escrow Cash") shall be declared and paid, they shall be retained in escrow ----------- pending final distribution of the Escrow Fund and will not be immediately distributed to the beneficial owners of the Escrow Shares. Such dividends will become part of the Escrow Fund and will be available to satisfy Damages. The beneficial owners of the Escrow Shares shall pay any taxes on such dividends. The Escrow Shares and the Escrow Cash are referred to herein as the "Escrow ------ Fund." Exhibit A hereto sets forth the name of each Target Stockholder and the ---- --------- number of Escrow Shares contributed to the Escrow Fund shall be held and distributed on behalf of each such Target Stockholder pursuant to Section 6.2 of the Merger Agreement. The value of the Escrow Shares, as determined in accordance with this Article VIII and Section 4(c)(iii) below, contributed by each Target Stockholder divided by the aggregate value of the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only Shares, as determined in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely Section 4(c)(iii) below, contributed by offset against the Escrow Fund. Notwithstanding anything all Target Stockholders to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated each such Target Stockholder's "proportionate interest" in the Escrow Shares. The Escrow ---------------------- Fund shall be held as compensation paid by the Company a trust fund and shall not be subject to the optionholders if and any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto. Escrow Agent agrees to the extent any portion of the optionholders’ portion accept delivery of the Escrow Fund is actually distributed and to hold such Escrow Fund in escrow subject to the optionholders, (ii) the right terms and conditions of this Agreement and Section 6 of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingMerger Agreement.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII Immediately prior to the Effective Time, Parent shall deposit or cause to be deposited with the Escrow Agent (an “Acquiror Indemnification Claim”as defined in Section 5.2), the Escrow Amount shall in trust, $30 million in immediately available funds (such amount, as it may be deposited into escrow decreased from time to time pursuant to the Escrow Agreement and together with interest accrued thereon as provided in the Escrow Agreement, being herein referred to as the "ESCROW FUND"). At the Effective Time, the Company and the Stockholders' Representative (as defined in Section 9.5) shall deliver to Parent and the Escrow Agent for inclusion as Schedule 1 to the Escrow Agreement a schedule of all holders of Shares immediately prior to the Effective Time, the fractional interest in the Escrow Fund to which each such holder would be entitled pursuant to clause (ii) of Section 1.6(a) (assuming such holder does not pursue its dissenter's rights as set forth in Section 1.8 and surrenders all certificates representing its Shares) (as to such holder, the "ESCROW PERCENTAGE") and the portion of such Escrow Percentage, if any, which is to remain contingent upon such holder surrendering certificates representing Shares or complying with the procedures set forth in Section 1.9(e). All matters relating to the Escrow Fund, to the extent not referred to in this Agreement, shall be governed by the Escrow Agreement, PROVIDED, HOWEVER, that, in the event of any conflict between the terms of this Agreement and the Escrow Agreement, the terms of this Agreement shall be controlling. The Escrow Agent shall hold, invest, reinvest and disburse the Escrow Fund in accordance with Section 2.9the Escrow Agreement. The Escrow Fund shall not be held and distributed in accordance with this Article VIII and the Escrow Agreementused for any other purpose. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything The right of any person who was a holder of Shares immediately prior to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply Effective Time to receive any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of payment from the Escrow Fund shall not be treated as compensation paid transferable or assignable in any manner whatsoever except by order of a court of competent jurisdiction, by will or by the Company to the optionholders if and to the extent any portion laws of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingintestate succession.

Escrow Fund. To provide In the event of a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Change in Control, as collateral security for its obligations hereunder, the Company shall dedicate and maintain for the benefit of Indemnitee, for a period of five years following the Change in Control, an escrow account in an aggregate amount of five hundred thousand dollars ($500,000) by depositing assets or bank letters of credit in escrow or reserving lines of credit that may be drawn down by an escrow agent in said amount (the "Escrow Amount Reserve") . The terms of the escrow agreement shall provide that upon a Change in Control (a) the escrow shall not be revoked or the principal of the Escrow Reserve invaded without the written consent of the Indemnitee, (b) the escrow agent shall advance within two business days of a request by the Indemnitee any and all Expenses, (c) the escrow agent shall promptly pay to the Indemnitee all amounts for which the Indemnitee shall be deposited into entitled to indemnification pursuant to this Agreement or otherwise, and (d) all unexpended funds in such escrow pursuant shall revert to the Company upon a final determination by a court of competent jurisdiction that the Indemnitee has been fully indemnified under the terms of this Agreement. The escrow agent shall be chosen by the Indemnitee. The Company may in its sole discretion establish an Escrow Reserve in anticipation of a Change in Control. Promptly following the establishment of the Escrow Reserve, the Company shall provide Indemnitee with a true and complete copy of the agreement relating to the establishment and operation of the Escrow Reserve, together with such additional documentation or information with respect to the Escrow Agreement in accordance with Section 2.9Reserve as Indemnitee may from time to time reasonably request. The Escrow Fund shall be held and distributed in accordance with this Article VIII and Promptly following the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion establishment of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholdersReserve, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with deliver a copy of this Agreement to the foregoingescrow agent for the Escrow Reserve to evidence to that agent that Indemnitee is a beneficiary of that Escrow Reserve and shall deliver to Indemnitee the escrow agent's signed receipt evidencing that delivery. Nothing in this Section 11 shall relieve the Company of any of its obligations under this Agreement.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims (a) At the Effective Time, Acquirer shall withhold the Escrow Amount from the Merger Consideration otherwise payable pursuant to Section 1.3(a)(i) (with respect to shares of indemnification under this Article VIII Company Capital Stock), Section 1.3(a)(iii) (an with respect to vested In the Money Options) and Section 1.3(a)(iv) (with respect to In the Money Warrants) and shall deposit the Escrow Amount with U.S. Bank National Association (or another institution selected by Acquirer and reasonably satisfactory to the Company) as escrow agent (the “Acquiror Indemnification ClaimEscrow Agent”) (the aggregate amount of cash so held by the Escrow Agent from time to time, together with any interest earned on such cash, the “Escrow Fund”), which Escrow Fund shall be governed by this Agreement and the Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with Section 2.9Agreement. The Escrow Fund shall be held constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under Section 1.5 and distributed in accordance with the indemnification obligations of the Converting Holders under this Article VIII and VIII. Subject to Section 8.4, the Escrow Agent shall hold the Escrow Fund until 11:59 p.m. local time on the date (the “Escrow Release Date”) that is 15 months after the Effective Time. Except as provided in the Escrow Agreement. Each Acquiror Indemnification Claim , the Converting Holders shall be made only not receive interest or other earnings on the cash in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything Neither the Escrow Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion distribution of the Escrow Fund to any Converting Holder in accordance with Section 8.1(b), except that each Converting Holder shall be treated as compensation paid by the Company entitled to the optionholders if and assign such Converting Holder’s rights to the extent any portion of the optionholders’ portion such Converting Holder’s Pro Rata Share of the Escrow Fund is actually distributed to the optionholdersby will, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) laws of the preceding sentence is intended to ensure that the right intestacy or by other operation of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoinglaw.

Escrow Fund. To provide As soon as practicable after the Closing Date, Buyer ----------- shall deposit with the Escrow Agent a fund against which an Acquiror Indemnified Party may assert claims certificate representing 70,000 shares of indemnification under this Article VIII Buyer's Series B-1 Preferred Stock registered in the name of Xxxxxx Trust Company of California as Escrow Agent, (an “Acquiror Indemnification Claim”)the "Escrow Shares" and, as so ------------- deposited, the "Escrow Amount shall be deposited into escrow Fund"). Exhibit A hereto sets forth the name and address ----------- --------- of each Seller Stockholder and the number of Escrow Shares contributed to the * Material has been omitted pursuant to a request for confidential treatment, and such material has been filed separately with the SEC. Escrow Agreement in accordance with Fund on behalf of each such Seller Stockholder pursuant to Section 2.99 of the Purchase Agreement. The number of Escrow Fund shall be held and distributed in accordance with this Article VIII and Shares contributed on behalf of each Seller Stockholder divided by the total amount of Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely Shares contributed by offset against the Escrow Fund. Notwithstanding anything all Seller Stockholders to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated each such Seller Stockholder's "proportionate interest" in the Escrow Shares. The Escrow Fund ---------------------- shall be held as compensation paid by the Company an escrow fund and shall not be subject to the optionholders if and any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto. Escrow Agent agrees to the extent any portion of the optionholders’ portion accept delivery of the Escrow Fund is actually distributed and to hold such Escrow Fund in escrow subject to the optionholdersterms and conditions of this Agreement. Attached hereto as Exhibit B are the names, (ii) the right titles and specimen --------- signatures of each of the stockholders persons who are authorized on behalf of Buyer, Seller and Seller's Representative to execute and deliver written notices and instructions to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingAgent.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”a) At the Closing the Buyer shall cause Parent to deliver to Mellon Bank as escrow agent (the "Escrow Agent"), the Escrow Amount shall be deposited into escrow pursuant to an escrow agreement (the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the "Escrow Agreement. Each Acquiror Indemnification Claim shall be made only ") in accordance with this Article VIII and substantially the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything form attached hereto as Exhibit C, a number of Parent Shares equal to the contrary contained in this Agreement, none product of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion all of the Escrow Fund shall be treated as compensation paid Shares owned by the Company Representing Stockholders immediately prior to the optionholders if and to Closing (which shall include the extent net exercise number of any portion Shares issuable upon exercise of the optionholders’ portion of the Escrow Fund is actually distributed Company Options pursuant to the optionholders, Section 1.07) and (ii) the right Deferred Exchange Ratio in effect on the Closing Date (the "Escrow Fund"). As will be set forth with more particularity in the Escrow Agreement, the Parent Shares so delivered to the Escrow Agent (together with earnings and distributions thereon, including any Extraordinary Dividend, the "Escrow Shares"), shall be delivered to the Representing Stockholders pro-rata in accordance with their respective interests in the Company set forth on a schedule to the Escrow Agreement, less any amounts reserved for indemnification claims pursuant to Section 11.07, on the first, second and third anniversaries of the stockholders Closing Date in the amounts set forth in Section 1.02(a). The Buyer agrees to the stockholders’ portion cause Parent to remove any restrictive legends contained on any Parent Shares distributed out of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 Fund, within ten days of the Code receipt by Parent of satisfactory evidence, if necessary, that such legends are no longer required by Rule 144(e), (f) and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(gh) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to Securities Act, or on the extent any amount date of distribution for distributions occurring on or after the second anniversary of the stockholders’ portion of Closing Date. If the Parent Shares are not sufficient or are more than required to satisfy the Buyer's obligations hereunder, either Parent shall issue additional Parent Shares to cure the deficiency or the Escrow Fund is actually distributed Agent shall return the excess Escrow Shares, or the cash resulting from the previous sale thereof by the Escrow Agent, to the stockholders, interest may be imputed on such amountParent, as required by Section 483 or 1274 of applicable. The Representing Stockholders acknowledge that any additional Parent Shares so issued on the Code; and (v) in no event shall third anniversary will not be securities registered under the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingSecurities Act.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims As security for the indemnity provided for in Section ----------- 7.2(a) above and by virtue of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Agreement and the Certificate of Merger, the Company and the Escrow Stockholders will be deemed to have received (subject to the conditions of this Section 7.2) and deposited with the Escrow Agent the Escrow Amount (plus any additional shares as may be issued in respect of any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow Amount) without any act of the Company or the Escrow Stockholders. The Escrow Amount shall be deposited into escrow pursuant available to compensate the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held Indemnified Parties for any claims by such Parties for any Losses suffered or incurred by them and distributed in accordance with for which they are entitled to recovery under this Article VIII and VII. As promptly as practicable after the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this AgreementEffective Time, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, without any act of the Escrow Stockholders, will be deposited with Imperial Bank, as Escrow Agent (or any portion thereofother institution acceptable to Parent and the Stockholder Representative (as defined in Section 7.2(h) below and the preamble above)), such deposit of the Escrow Amount to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof and prior to the Effective Time, and such later execution, if so executed after the date hereof, shall be allocable not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. Notwithstanding any provision of this Agreement to the Acquiror pursuant contrary (except as set forth in Section 5.5 and 7.2(m)), after the Effective Time, no Indemnified Party shall be entitled to indemnification or to obtain any proceeds from the Escrow Fund or to otherwise recover any amount unless and until one or more Officer's Certificate (as defined in Section 468B(g7.2(e) below) identifying Losses in excess of $100,000 in the aggregate (the "Basket Amount") has or have been delivered to the Escrow Agent as provided in Section 7.2(e) below, in which case, subject to subsections (f) and (g) of this Section 7.2, an Indemnified Party shall be entitled to recover all Losses including the Code and Proposed Treasury Regulation Section 1.468B-8Basket Amount; (iv) if and provided, however, legal fees incurred by the Stockholder Representative to the extent any amount set forth in Section 7.2(h)(ii) and indemnity claims of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amountstockholder Representative thereunder, as provided in Section 7.2(m), and any amounts required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated paid by the Stockholder Representatives prior Parent or the Surviving Corporation holders of Company Capital Stock with respect to the Closing. Clause (v) of the preceding sentence is intended Dissenting Shares, shall not be subject to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingsuch Basket Amount.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)i) Prior to or simultaneously with the Closing, the Members’ Representative and Parent shall enter into an escrow agreement substantially in the form of Exhibit B hereto (the “Escrow Amount Agreement”) with the Escrow Agent, or if the Escrow Agent is unwilling or unable to serve, then such other financial institution of at least $500,000,000 in total assets mutually acceptable to the Members’ Representative and Parent. Pursuant to the terms of the Escrow Agreement, Parent shall be deposited into escrow pursuant to deposit with the Escrow Agreement (i) one or more stock certificates representing the Escrow Shares, and (ii) one or more warrants representing the Escrow Warrants issued to the Contributing Members at Closing and related irrevocable stock powers in accordance with Section 2.9the name of the Contributing Members representing the Escrow Securities, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Securities and Proceeds in the Escrow Account are collectively referred to herein as the “Escrow Fund”. The Escrow Fund Agreement shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be provide that so long as a bona fide, good faith claim for indemnification has not been made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this AgreementParent, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: that (i) the optionholders’ entirety of the Escrow Fund remain with the Escrow Agent for (18) eighteen months, (ii) after completion of (18) eighteen months post Closing, that portion of Escrow Shares (and/or any Proceeds or common stock of Parent received by the Contributing Members by virtue of the exercise of Parent Warrants and Redemption Warrants) in excess of $3,000,000 in value based on the Escrow Per Share Market Value be released to the Contributing Members as well as the entirety of the Escrow Warrants and (iii) upon completion of (60) sixty months after Closing, the Escrow Account shall be closed and all remaining Escrow Shares and any and all other assets of the Contributing Members held in the Escrow Fund shall be treated as compensation paid by the Company released to the optionholders if and to the extent any portion of the optionholders’ portion Members. In connection with such deposit of the Escrow Fund is actually distributed to Securities with the optionholders, (ii) the right Escrow Agent and as of the stockholders Effective Time, each Contributing Member holder of Company Interests will be deemed to have constructively received and deposited with the stockholdersEscrow Agent each Contributing Member’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such Contributing Member’s ownership of Company Interests (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund) as reflected on the Company Interest Certificates, without any further action by the Contributing Members. Distributions of any Escrow Securities or the Escrow Fund or Proceeds from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement, but shall occur no later than the end of the indemnity periods as set forth in Section 10.01. The adoption of this Agreement and the approval of the Merger by the Members shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Securities and Proceeds in the Escrow Fund and the appointment of the Members’ portion of Representative. No Escrow Securities contributed to the Escrow Fund shall be eligible unvested or subject to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of repurchase, risk of forfeiture or other condition in favor of Parent, the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingSurviving Corporation or other entity.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims As partial security for the indemnity provided for ----------- in Section 7.2 hereof and by virtue of indemnification under this Article VIII Agreement, Buyer shall deposit with the Escrow Agent (an “Acquiror Indemnification Claim”)as defined below) the Escrow Amount. As soon as practicable after the Closing, the Escrow Amount shall Amount, without any act of Seller, will be deposited into with First Trust of California, National Association (or other institution acceptable to Buyer and the Seller) as Escrow Agent (the "Escrow ------ Agent"), such deposits to constitute an escrow pursuant fund (the "Escrow Fund") to be ----- ----------- governed by the Escrow Agreement terms set forth herein. The Seller agrees to indemnify and hold Buyer and its officers, directors and affiliates harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses") incurred by Buyer, ---- ------ its officers, directors, or affiliates directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of Seller or the Company contained in accordance this Agreement, (ii) Net Liabilities as of the Closing Date exceeding Estimated Net Liabilities or (iii) any failure by Seller or the Company to perform or comply with any covenant contained in this Agreement; provided that, with respect to any inaccuracy or breach of any representation or -------- ---- warranty set forth in Section 2.92.9 as a result of a Customer Termination or Customer Notice, "Loss" shall mean with respect to each such Customer Termination a dollar amount equal to one hundred percent (100%) of the Annualized Revenue for such former Customer less the amount of any revenue earned by the Company with respect to such Customer after the Closing Date. The Escrow Fund shall be held available to compensate Buyer and distributed in accordance its affiliates for any such Losses. Seller shall not have any right of contribution from the Company with this Article VIII and respect to any Loss claimed by Buyer after the Closing. Buyer may not receive any cash from the Escrow Agreement. Each Acquiror Indemnification Claim shall Fund unless and until the amount determined to be made only owed to Buyer pursuant to undisputed Officer's Certificates (as defined in accordance with this Article VIII paragraph (e) below) identifying Losses and disputed Officer's Certificates which have been resolved through the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations arbitration process set forth in this Article VIII shall apply Section 7.2(g), which in the aggregate exceed $100,000, have been delivered to any action for specific performancethe Escrow Agent as provided in paragraph (e) below; provided, injunctive relief or other equitable remedy. Acquirorhowever, Sub and the Company agree for all tax purposeswith respect -------- ------- to each of: (i) the optionholders’ portion Third Party Expenses in excess of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion greater of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders(A) Estimated Third Party Expenses or (B) $250,000, (ii) the right Net Liabilities as of the stockholders to the stockholders’ portion Closing Date in excess of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code Estimated Net Liabilities, and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner Losses related to a breach of the Escrow Fund solely representation and warranty set forth in Section 2.23(j) the aforementioned $100,000 threshold shall not be applicable for tax purposes, and all interest and earnings earned from the investment and reinvestment purposes of claims of Losses against the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.

Escrow Fund. To provide a fund against which When making payments of cash to the Company Shareholders in exchange for their shares of Company Common Stock pursuant to Sections 2.01 and 2.02, Parent shall withhold an Acquiror Indemnified Party may assert claims aggregate of indemnification under this Article VIII Five Million Dollars (an $5,000,000) in cash (the “Acquiror Indemnification ClaimEscrow Cash”), and at the Closing Parent shall deliver such Escrow Amount Cash to SunTrust Bank as escrow agent (the “Escrow Agent”). The Escrow Cash shall be deposited into escrow held pursuant to the provisions of an escrow agreement substantially in the form of Exhibit 2.03(a) (the “Escrow Agreement Agreement”) to be executed at Closing. Parent shall withhold the Escrow Cash by reducing the amount of cash otherwise payable to each Company Shareholder pursuant to Sections 2.01 and 2.02 by an amount equal to such Company Shareholder’s Pro Rata Portion of the Escrow Cash. The Escrow Cash shall be delivered to the Company Shareholders only in accordance with Section 2.9the terms of the Escrow Agreement and this Merger Agreement. The Escrow Fund Cash together with any interest earned on the Escrow Cash shall be held and distributed in accordance with as an escrow fund (the “Escrow Fund”) by the Escrow Agent pursuant to the terms of the Escrow Agreement to provide a source of payment, pursuant to the terms of this Article VIII Merger Agreement and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII , of amounts, if any, owing to the Parent Indemnified Persons under Section 9.02 and the Escrow Agreementreimbursement to Parent of amounts owed Parent under Section 5.11 (if any). An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely In the event that the Merger and this Merger Agreement are approved by offset against the Escrow Fund. Notwithstanding anything requisite vote of the Company Shareholders pursuant to the contrary contained in this AgreementVSCA, none then all Company Shareholders shall, without any further act of the limitations set forth in this Article VIII shall apply any Company Shareholder, be deemed to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub have consented to and the Company agree for all tax purposes: approved (i) the optionholders’ portion establishment of the Escrow Fund shall to be treated used as compensation paid by provided in this Merger Agreement and the Company Escrow Agreement to provide a source of payment, pursuant to the optionholders if and to the extent any portion of the optionholders’ portion terms of the Escrow Fund is actually distributed Agreement and this Merger Agreement, for amounts, if any, owing to Parent Indemnified Persons under Section 9.02 and the optionholdersreimbursement to Parent of amounts owed Parent under Section 5.11 (if any), and (ii) the right appointment of the stockholders to Shareholders’ Representative as the stockholders’ portion representative under the Escrow Agreement of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code Company Shareholders and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner attorney-in-fact and agent for and on behalf of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on each such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingShareholder.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims As soon as practicable after the Closing, that number of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), Exchangeable Shares comprising the Escrow Amount will be deposited by the Surviving Corporation, without any act of any Holder in Escrow, with Bank of Montreal Trust Company (or another institution acceptable to BackWeb Parent and the Agent (as defined in Section 7.2(f) below)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. The Escrow Amount contributed on behalf of any Holder in Escrow shall be deposited into escrow a fraction of the total Escrow Amount equal to such Holder's Proportional Escrow Amount, and shall be deducted from the portion of the Amalgamation Consideration to which such holder of Lanacom Common Shares would otherwise be entitled to receive pursuant to Section 1.5. A list of the respective Escrow Amounts contributed by the Holders shall be provided to the Escrow Agreement in accordance with Section 2.9Agent. The Escrow Fund shall be held and distributed Amount deposited in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by used effectively to reduce the Company Amalgamation Consideration in the event of (y) a reduction required pursuant to the optionholders if Section 1.7 of this Agreement and (z) any claim, loss, expense, liability or other damage, including reasonable attorneys' fees, to the extent any portion of the optionholders’ portion amount of such claim, loss, expense, liability or other damage (collectively with any amounts payable pursuant to Section 1.7, the "Losses") that BackWeb Parent or any of its affiliates have incurred by reason of the breach by Lanacom of any representation, warranty, covenant or agreement of Lanacom contained in this Agreement. BackWeb Parent, Lanacom and the Agent each acknowledge that such Losses, if any, shall be deemed to relate to unresolved contingencies existing at the Closing Date which, if resolved at the Closing Date, would have led to a reduction in the Amalgamation Consideration. Nothing herein shall limit the liability of Lanacom, the Founder or any holder of Lanacom Common Shares for any breach of any covenant, or any willful breach of any representation or warranty, if the Amalgamation does not close. In addition, notwithstanding the foregoing, the Surviving Corporation shall not be entitled to receive any Escrow Amounts from the Escrow Fund is actually distributed unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed an aggregate US_______ deductible amount, have been delivered to the optionholdersEscrow Agent as provided in paragraph (d); in such case the Escrow Agent shall deliver to the Surviving Corporation for cancellation for no consideration, and in full satisfaction of the aggregate claims of BackWeb Parent (iior its affiliates) the right number of the stockholders to the stockholders’ portion of Exchangeable Shares remaining in the Escrow Fund having an aggregate value (based on the value of the Exchangeable Shares on the Closing Date of US_____ per share) equal to one-third of the aggregate amount of such Losses (reflecting the parties' agreement that one-third of the risk of such event shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 borne by the shareholders of Lanacom and two-thirds of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror risk shall be treated as borne by BackWeb Parent) minus the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any one time aggregate deductible amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingUS_______.

Escrow Fund. To provide a fund against which Prior to or simultaneously with the Closing, the ----------- Securityholders' Representative and Parent shall enter into an Acquiror Indemnified Party may assert claims escrow agreement (the "Escrow Agreement") with an escrow agent selected by Parent and reasonably ---------------- acceptable to the Securityholders' Representative (the "Escrow Agent") ------------ substantially in the form attached as Exhibit C hereto. Pursuant to the terms of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)the Escrow Agreement, Parent shall deposit the Escrow Amount shall into an escrow account, which account is to be deposited into escrow pursuant to managed by the Escrow Agreement in accordance with Section 2.9Agent (the "Escrow ------ Account"). The Escrow Amount and all interest and other amounts earned thereon ------- in the Escrow Account is referred to herein as the "Escrow Fund." In connection ----------- with such deposit of the Escrow Amount with the Escrow Agent and as of the Effective Time, each holder of the Company Preferred Stock (the "Company ------- Preferred Stockholders"), as applicable, will be deemed to have received and ---------------------- deposited with the Escrow Agent such person or entity's pro rata interest in the Escrow Fund as determined as of Closing by reference to such person or entity's pro rata interest in the Preferred Merger Consideration, if any, without any act of such Company Preferred Stockholders. Distributions of any portion of the Escrow Amount from the Escrow Account shall be held governed by the terms and distributed in accordance with this Article VIII and conditions of the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with The approval of this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely Agreement by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion Preferred Stockholders shall constitute approval of the Escrow Fund shall be treated as compensation paid Agreement and of all the arrangements relating thereto by the Company to Preferred Stockholders, including, without limitation, the optionholders if and to the extent any portion of the optionholders’ portion placement of the Escrow Fund is actually distributed to Amount in escrow and the optionholders, (ii) the right appointment of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingSecurityholders' Representative.

Escrow Fund. To provide (i) Promptly after the Effective Time, Parent shall deposit with the Escrow Agent each Principal Shareholder’s Pro Rata Portion. The Parent Common Stock to be deposited in the Escrow Fund shall be represented by a fund against which an Acquiror Indemnified Party may assert claims single stock certificate registered in the name of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Var & Co., as nominee of the Escrow Agent. Such deposit of the Escrow Amount (plus any New Shares (as defined in Section 7.3(c)(v) hereof), as well as any cash substituted for the Parent Common Stock in accordance with Sections 7.3(a)(iii)(1) and (2) shall constitute an escrow fund (the “Escrow Fund”) to be governed by the terms set forth herein. The Pro Rata Portion of each Principal Shareholder shall be as set forth on a schedule delivered by the Company to the Escrow Agent at Closing in a form previously approved by the Escrow Agent and Parent (the “Escrow Schedule”). Such Principal Shareholder’s right to receive its Pro Rata Portion shall be solely a right of such Principal Shareholder to receive payments as provided in this Section 7.3. Such Pro Rata Portion for each Principal Shareholder shall be deposited by Parent as, for this purpose, agent of the Principal Shareholders, who shall thereupon, without any act by them, be treated as having received from Parent under Section 1.7 hereof such Pro Rata Portion and then as having deposited such Pro Rata Portion into escrow pursuant to the Escrow Agreement in accordance with Section 2.9Fund. The Escrow Fund shall be held security for the indemnity obligations provided for in Section 7.2 hereof. The Escrow Fund shall be available to compensate the Parent Indemnified Parties for any claims by such parties for any Losses suffered or incurred by them and distributed in accordance with for which they are entitled to recovery under this Article VIII VII. The Escrow Agent may execute this Agreement following the date hereof and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything prior to the contrary contained in Closing, and such later execution, if so executed after the date hereof, shall not affect the binding nature of this Agreement, none Agreement as of the limitations set forth date hereof between the other signatories hereto. Interests in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingnon-transferable.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims (a) As sole security for the indemnity provided for in Section 9.2 of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)Agreement, the Escrow Amount Shares (defined in Section 2.3 hereof) shall be registered in the names of the Indemnifying Holders but shall be deposited into (together with assignments in blank executed by the Indemnifying Holders) with Chase Manhattan Trust Company, National Association (or other institution selected by SAFLINK with the reasonable consent of the Holders' Representative) as escrow pursuant agent (the "Escrow Agent"), such deposit to constitute an escrow fund ("the Escrow Fund") to be governed by the terms set forth herein and in an Escrow Agreement among SAFLINK, the Escrow Agent and the Indemnifying Holders (the "Escrow Agreement") substantially in the form attached hereto as Exhibit 7.1(i). Subject to the terms of Section 9.3(b) of this Agreement, SAFLINK's compliance with the terms hereof and the terms of the Escrow Agreement the SAFLINK Indemnitees shall be entitled to obtain indemnification from the Escrow Fund for all Indemnifiable Damages covered by the indemnity provided for in Section 9.2 of this Agreement (it being understood that each Jotter Indemnitor's liability under this Agreement shall be limited to the Escrow Fund). The adoption and approval of this Agreement by Jotter's shareholders shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Escrow Shares in escrow, and the appointment of the Holders' Representative to act for and on behalf of all of the Indemnifying Holders, as the attorney-in-fact and agent of such persons, to give and receive notices and communications, to authorize delivery of any shares of SAFLINK Common Stock from the Escrow Fund in satisfaction of claims by SAFLINK Indemnitees, to object to such deliveries, to agree to, negotiate and enter into settlements and compromises of, and comply with orders and decrees with respect to such claims, and to take all actions necessary or appropriate in the judgment of such representative for the accomplishment of the foregoing. A decision, act, consent or instruction of the Holders' Representative shall constitute a decision of all of the Indemnifying Holders and shall be final, binding and conclusive upon each of the Indemnifying Holders. The Escrow Agent, SAFLINK and Acquisition Corporation may rely upon any decision, act, consent or instruction of the Holders' Representative as being the decision, act, consent or instruction of each and all of the Signing Holders. The Escrow Agent and SAFLINK and Acquisition Corporation are hereby relieved from any liability to any person for any acts done by them in accordance with Section 2.9. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreementsuch decision, none act, consent or instruction of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingHolders' Representation.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims As soon as practicable after the Closing, that number of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), Exchangeable Shares comprising the Escrow Amount will be deposited by the Surviving Corporation, without any act of any Holder in Escrow, with Bank of Montreal Trust Company (or another institution acceptable to BackWeb Parent and the Agent (as defined in Section 7.2(f) below)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein. The Escrow Amount contributed on behalf of any Holder in Escrow shall be deposited into escrow a fraction of the total Escrow Amount equal to such Holder's Proportional Escrow Amount, and shall be deducted from the portion of the Amalgamation Consideration to which such holder of Lanacom Common Shares would otherwise be entitled to receive pursuant to Section 1.5. A list of the respective Escrow Amounts contributed by the Holders shall be provided to the Escrow Agreement in accordance with Section 2.9Agent. The Escrow Fund shall be held and distributed Amount deposited in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by used effectively to reduce the Company Amalgamation Consideration in the event of (y) a reduction required pursuant to the optionholders if Section 1.7 of this Agreement and (z) any claim, loss, expense, liability or other damage, including reasonable attorneys' fees, to the extent any portion of the optionholders’ portion amount of such claim, loss, expense, liability or other damage (collectively with any amounts payable pursuant to Section 1.7, the "Losses") that BackWeb Parent or any of its affiliates have incurred by reason of the breach by Lanacom of any representation, warranty, covenant or agreement of Lanacom contained in this Agreement. BackWeb Parent, Lanacom and the Agent each acknowledge that such Losses, if any, shall be deemed to relate to unresolved contingencies existing at the Closing Date which, if resolved at the Closing Date, would have led to a reduction in the Amalgamation Consideration. Nothing herein shall limit the liability of Lanacom, the Founder or any holder of Lanacom Common Shares for any breach of any covenant, or any willful breach of any representation or warranty, if the Amalgamation does not close. In addition, notwithstanding the foregoing, the Surviving Corporation shall not be entitled to receive any Escrow Amounts from the Escrow Fund is actually distributed unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed an aggregate US$50,000 deductible amount, have been delivered to the optionholdersEscrow Agent as provided in paragraph (d); in such case the Escrow Agent shall deliver to the Surviving Corporation for cancellation for no consideration, and in full satisfaction of the aggregate claims of BackWeb Parent (iior its affiliates) the right number of the stockholders to the stockholders’ portion of Exchangeable Shares remaining in the Escrow Fund having an aggregate value (based on the value of the Exchangeable Shares on the Closing Date of US$0.50 per share) equal to one-third of the aggregate amount of such Losses (reflecting the parties' agreement that one-third of the risk of such event shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 borne by the shareholders of Lanacom and two-thirds of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror risk shall be treated as borne by BackWeb Parent) minus the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any one time aggregate deductible amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingUS$50,000.

Escrow Fund. To provide As soon as practicable after the First Merger Effective Time, without any act of any holder of Company Common Stock, a fund against which portion of the Initial Stock Merger Consideration consisting of 708,750 shares of Parent Common Stock (such shares being the "Escrow Shares") and $17,325,000 of the Initial Cash Merger Consideration (the "Escrow Cash") shall be deposited with The Bank of New York (or such other institution mutually selected by Parent and the Company) as escrow agent (the "Escrow Agent"), such deposit to constitute the "Escrow Fund" and to be governed by the terms set forth herein and in an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII escrow agreement among Parent, the Shareholder Representative and the Escrow Agent (an “Acquiror Indemnification Claim”the "Escrow Agreement"), the form of which is attached as Exhibit D hereto. Each Person who is issued Initial Parent Shares shall have a proportionate interest in the Escrow Amount shall Shares and the Escrow Cash deposited in the Escrow Fund (the amount of such proportionate interests to be deposited into escrow pursuant provided to Parent by MHRx not later than two (2) Business Days prior to the Escrow Agreement in accordance with Section 2.9Closing Date). The Escrow Fund Shares shall be held and registered in the names of such MHRx members. Any shares of Parent Common Stock or other Parent equity securities (including shares issued upon a stock split) ("New Shares") issued or distributed by Parent in accordance with this Article VIII and respect of the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of Shares that have not been released from the Escrow Fund shall be treated as compensation paid by the Company added to the optionholders if Escrow Fund, and become a part thereof; provided, however, any other dividends or distributions on the Escrow Shares (including on the New Shares) made in cash or property shall be currently distributed to the extent any portion owners of the optionholders’ portion such shares. The owners of the Escrow Fund is actually distributed Shares shall pay any taxes on such dividends. The parties hereto shall cause each record owner of Escrow Shares to have the optionholders, (ii) ability to direct the right voting of the stockholders that number of Escrow Shares contributed to the stockholders’ portion of the Escrow Fund on behalf of such shareholder (and on any New Shares) so long as such shares are held in the Escrow Fund. Parent shall be eligible show the Parent Common Stock contributed to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, as issued and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed outstanding on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingits balance sheet.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”On or as soon as reasonably practicable after the Closing Date, in accordance with Section 2.04(b), the Escrow Amount shall be deposited into escrow pursuant with U.S. Bank, National Association (or its successor in interest or other institution selected by Purchaser with the consent of the other parties to the Escrow Agreement, which consent shall not be unreasonably withheld), as escrow agent (the “Escrow Agent”). The Escrow Amount so deposited, together with interest and other income thereon, if any, shall constitute the “Escrow Fund” and shall be governed by the terms set forth in this Agreement and in accordance with Section 2.9the Escrow Agreement. The Escrow Fund shall be held the sole source of funds available to compensate Purchaser pursuant to the indemnification obligations of the other parties hereto and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset any claims against the Escrow Fund. Notwithstanding anything to Special Fiduciary and Trustee for any Losses resulting from any breach by the contrary Special Fiduciary and Trustee of any of its covenants, obligations, representations or warranties or breach or untruth of any covenant, obligation, representation, warranty, fact or conclusion contained in this Agreement, none of any Ancillary Agreement or any document delivered pursuant to which it is a party, including any indemnification claim made by Purchaser under this Article IX; provided, however, that the limitations set forth contained in this Article VIII Section 9.02 shall not apply to any action recovery for specific performanceinaccuracy in or breach of a representation, injunctive relief warranty or other equitable remedyobligation contained in Sections 3.01, 3.02, 3.05(c), 3.15, 3.17, 4.01. Acquiror, Sub 4.02 and the Company agree last sentence of 4.08 or a claim based on willful misconduct or fraud. The Escrow Agreement shall have a term of two (2) years and shall provide for all tax purposes: the release of one half (i1/2) the optionholders’ portion of the Escrow Fund on the first anniversary thereof, net of the estimated value of any asserted claims, which estimated value shall be treated as compensation paid by withheld from the Company to amount released, and the optionholders if and to remaining one half (1/2) on the extent any portion second anniversary thereof, also net of the optionholders’ portion estimated value of the Escrow Fund is actually distributed to the optionholdersasserted claims, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund which estimated value shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned withheld from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingreleased.

Escrow Fund. To provide a fund against It is acknowledged and agreed that: (i) simultaneously with the execution of this Agreement, Nexus shall issue in the name of the Escrow Agent and deposit into escrow an aggregate of 161,440 shares of Series B Preferred Stock (which an Acquiror Indemnified Party may assert claims stock will be converted to Nexus Common Stock, as contemplated in the Merger Agreement, and thereafter, in the Merger, such stock will be cancelled and automatically converted to Closing Merger Consideration equal to the aggregate amount of indemnification under this Article VIII Five Hundred Thousand Dollars (an $500,000)) (together with any other funds received by the Escrow Agent on account of the deposited Series B Preferred Stock, the “Acquiror Indemnification ClaimAurora Escrowed Funds”), which funds shall secure the indemnification obligations of the persons identified on Schedule 1 attached hereto (the “Former Aurora Holders”) for the Wako Claim, and (ii) at the Closing of the Merger, Xxxxxx or the Transitory Subsidiary shall deposit with the Escrow Amount Agent, by wire transfer of immediately available funds, a portion of the Base Merger Consideration in the aggregate amount of Five Hundred Thousand Dollars ($500,000) (the “Nexus Escrowed Funds”), which funds shall be secure the indemnification obligations of the persons identified on Schedule 2 attached hereto (the “Equity Holders”) for the Wako Claim. The property deposited into the escrow pursuant to the Escrow Agreement established hereunder in accordance with this Section 2.93(a)(i) and (ii) hereof, with any interest earned thereon, is referred to herein, as the “Escrow Fund”. For avoidance of doubt, each of the Former Aurora Holders are also Equity Holders. The Escrow Fund shall be held as a trust fund and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall not be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply subject to any action for specific performancelien, injunctive relief attachment, trustee process or any other equitable remedyjudicial process of any creditor of any party hereto. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the The Escrow Fund shall be treated as compensation paid by the Company invested in accordance with Section 5 hereof. The Escrow Agent agrees to the optionholders if and to the extent any portion of the optionholders’ portion of hold the Escrow Fund is actually distributed in an escrow account subject to the optionholders, (ii) the right terms and conditions of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingAgreement.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”)As security for the indemnity provided for in SECTION 8.2, the Escrow Amount Shares shall be deposited into escrow pursuant to registered in the name of, and, with the Escrow Agreement Cash, be deposited with, an escrow agent selected by Acquiror with the consent of the Stockholders' Agent (which consent shall not be unreasonably withheld) (the "ESCROW AGENT"), such deposit to constitute the Escrow Fund to be governed by the terms set forth herein and in accordance with Section 2.9the Escrow Agreement. The Escrow Fund shall be held and distributed allocated among the Former Target Stockholders on a pro-rata basis in accordance with SECTION 1.6 (the "ESCROW ALLOCATION") (excluding for purposes of this Article VIII calculation any Dissenting Shares). Upon compliance with the terms hereof and subject to the provisions of this ARTICLE VIII, Acquiror and the Escrow Agreement. Each Acquiror Indemnification Claim Surviving Corporation shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything entitled to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of obtain indemnity from the Escrow Fund for Damages covered by the indemnity provided for in SECTION 8.2. In determining the amount of any Damages resulting from any misrepresentation, breach or default or whether a misrepresentation, breach or default has occurred, any materiality standard contained in the applicable representation, warranty or covenant shall be treated as compensation paid by disregarded. Notwithstanding the Company to the optionholders if and to the extent foregoing, Acquiror may not receive any portion of the optionholders’ portion of shares or cash from the Escrow Fund is actually distributed unless and until an Officer's Certificate (as defined in SECTION 8.5) identifying Damages, the aggregate amount of which exceeds $25,000 (the "ESCROW BASKET"), has been delivered to the optionholdersEscrow Agent as provided in SECTION 8.5 and such amount is determined pursuant to this ARTICLE VIII to be payable, in which case Acquiror shall receive a combination of shares and cash (ii) with the right cash portion comprising 20% of the stockholders value of any such payment) equal in value to the stockholders’ portion full amount of Damages. In determining the Escrow Fund amount of any Damage resulting from any misrepresentation, breach or default or whether a misrepresentation, breach or default has occurred, any materiality standard contained in the applicable representation, warranty or covenant shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingdisregarded.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII As provided in Section 1.8, promptly ----------- following the Effective Time, Splash shall deposit $1,755,000 with Comerica Bank (an “Acquiror Indemnification Claim”or another institution acceptable to Splash and the Shareholders' Agent (as defined in Section 7.2(g) below)), as Escrow Agent (the "Escrow Agent"), cash in ------------ the Escrow Amount, which shall constitute an escrow fund (the "Escrow Fund") to ----------- be governed by the terms set forth herein. The portion of the Escrow Amount contributed on behalf of each holder of Company Capital Stock shall be deposited into escrow pursuant correspond to the such shareholder's Proportionate Escrow Agreement in accordance with Section 2.9Interest. The Escrow Fund shall be held available to compensate Splash and distributed its affiliates (i) for the payment to Splash of any adjustments to the Merger Consideration pursuant to Section 1.13 of this Agreement, and (ii) for any claim, loss, expense, liability or other damage, including reasonable attorneys' fees and disbursements in connection with any action, suit or proceeding, to the extent of the amount of such claim, loss, expense, liability or other damage (collectively "Losses") that Splash or any of ------ its affiliates has actually incurred (or, in the case of an extension of the Escrow Period pursuant to Section 7.2(b)(ii), reasonably anticipates incurring), by reason of (x) the breach by the Company of any representation, warranty, covenant or agreement of the Company contained herein (including the Disclosure Schedule), or (y) the breach by any of the Company Shareholders of any representation, warranty, covenant or agreement contained in such Company Shareholders' Shareholders Agreements; provided, however, that claims for Losses ----------------- incurred as a result of a breach by a Company Shareholder shall be satisfied out of such shareholder's Proportionate Escrow Interest of the Escrow Fund until such Proportionate Escrow Interest is exhausted, and then shall be satisfied out of the Escrow Fund in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub Splash and the Company agree for all tax purposes: each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. Splash shall not be entitled to receive any disbursement with respect to any Loss under Section 7.2(a)(ii) arising in respect of any individual occurrence or circumstance unless the amount of the Loss arising in respect of such occurrence or circumstance individually, exceeds a $10,000 deductible level; provided, -------- however, that (i) in the optionholders’ portion event ------- -37- the aggregate Losses of Splash under Section 7.2(a)(ii) shall exceed $100,000, then Splash shall be entitled to recover from the Escrow Fund shall be treated as compensation paid by the Company to total of its Losses including any amounts below the optionholders if $10,000 deductible for each such occurrence or circumstance and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders foregoing limitation shall not apply to the stockholders’ portion of the Escrow Fund shall be eligible any Third Party Expense required to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror paid pursuant to Section 468B(g1.13(b) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoinghereof.

Escrow Fund. To provide On the Closing Date, a portion of Parent Stock to ----------- be issued to the Stockholders and a portion of the Cash Consideration to be paid to the Limited Partners at the Closing shall, without any act of any Limited Partner, be registered in the name of, and be deposited with, ChaseMellon Shareholder Services LLC (or other institution selected by Purchaser) as escrow agent (the "Escrow Agent"), such deposit to constitute the escrow fund against which an Acquiror Indemnified Party may assert claims (the ------------ "Escrow Fund") and to be governed by the terms set forth herein and in the ----------- Escrow Agreement attached hereto as Exhibit E (the "Escrow Agreement"). On the --------- ---------------- Closing Date, $382,500 of indemnification under this Article VIII the Cash Consideration otherwise payable to the Limited Partners (an “Acquiror Indemnification Claim”the "Initial Escrow Cash" and, together with the Supplemental ------------------- Cash and the New Cash (each as defined below), the "Escrow Amount Cash") and 75,000 ----------- shares of Parent Stock that the Stockholders are entitled to receive in the Purchase in exchange for the GP Shares (the "Initial Escrow Shares" and, --------------------- together with the New Shares (as defined below), the "Escrow Shares") shall be ------------- deposited by Purchaser into escrow pursuant to the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to In the contrary contained in this Agreementevent that any Damages (as defined below) arise, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated available to compensate the Indemnified Persons (defined below) pursuant to the indemnification obligations of the Limited Partnership, the General Partner and the Stockholders pursuant to Section 8.3 and in accordance with the Escrow Agreement, subject to the limitations of Section 8.3(b) below. At Closing, the Sellers' Agent may direct that a portion -42- of the Partnership Cash Distribution not to exceed $50,000 (the "Supplemental Cash") be deposited in the Sub-Account Fund (as compensation paid defined in the ----------------- Escrow Agreement), which Supplemental Cash shall be available to the Sellers' Agent (with notice to Purchaser) during the Escrow Period to pay any accrued legal, accounting or other administrative expenses incurred by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of Sellers' Agent during the Escrow Fund is actually distributed Period. Resort to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of made proportionately between the Escrow Fund solely for tax purposes, Cash and all interest and earnings earned from the investment and reinvestment of the Escrow AmountShares on a 45%-55% basis, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoingrespectively.

Escrow Fund. To provide a fund against which At the Effective Time, by virtue of the Merger, and without any action on the part of Acquiror, Merger Sub, the Company, the Company Securityholders, or the Securityholder Representative, an Acquiror Indemnified Party may assert claims amount equal to each Company Preferred Holder’s Closing Pro Rata [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. Portion of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), the Escrow Amount shall be withheld from the consideration otherwise payable to such Company Preferred Holder pursuant to Sections 1.8(a), 1.8(b), and 1.8(c). The amount so withheld from each Company Preferred Holder who is an Accredited Investor and deposited into the Escrow Fund shall be in the form of shares of Acquiror Common Stock and the amount so withheld from each Company Preferred Holder who is an Unaccredited Investor and deposited into the Escrow Amount shall be in the form of cash. At the Closing, Acquiror shall deposit, or cause to be deposited, with the Escrow Agent the Escrow Amount, such deposit of the Escrow Amount to constitute an escrow pursuant fund to be governed by the terms set forth in this Agreement and the Escrow Agreement (together with any dividends and income earned on the Escrow Amount, the “Escrow Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Escrow Agreement in accordance with Section 2.9Fund, on behalf of each Company Preferred Holder, an amount equal to such Company Preferred Holder’s Closing Pro Rata Portion of the Escrow Amount. The Escrow Fund shall be held available to compensate the Indemnified Parties for any claims by such parties for any Losses suffered or incurred by them and for which they are entitled to recovery under this Agreement, including Article VIII, and shall be distributed in accordance with the terms and conditions of this Agreement, including Article VIII VIII, and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with the foregoing.