Common use of Escrow Fund Clause in Contracts

Escrow Fund. (a) At the Closing, Acquiror will deposit with the Escrow Agent an amount equal to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”). The Escrow Fund will be governed by the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount. (b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.

Escrow Fund. (a) At the Closing, Acquiror will deposit with Acquirer shall withhold the Escrow Agent an amount equal Amount from the portion of the Adjusted Consideration payable pursuant to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”Section 1.1(d)(i), plus (bSection 1.1(d)(ii) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”Section 1.1(d)(iii). The Escrow Fund will be governed by shall constitute partial security for the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available benefit of Acquirer (ion behalf of itself or any other Indemnified Person) with respect to indemnify Acquiror any Indemnifiable Damages pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf obligations of the Former Stakeholders to Acquiror pursuant Indemnifying Holders under Section 1.2(g) and this Article VII. Subject to Section 2.137.4, Acquirer shall hold the Escrow Fund until the date (the “Escrow Release Date”) that is 18 months after the Closing Date. The Stakeholders’ Agent Indemnifying Holders shall not receive interest or other earnings on the cash in the Escrow Amount will Fund. Neither the Escrow Fund (including any portion thereof) nor any beneficial interest therein may be availablepledged, without the requirement subjected to any Encumbrance, sold, assigned or transferred by any Indemnifying Holder or be taken or reached by any legal or equitable process in satisfaction of any consent debt or approval other Liability of any Indemnifying Holder, in each case prior to the distribution of the Escrow Fund to any Indemnifying Holder in accordance with Section 7.1(b), except that each Indemnifying Holder shall be entitled to assign such Indemnifying Holder’s rights to such Indemnifying Holder’s Pro Rata Share of the Escrow Fund by Acquirorwill, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence laws of intestacy or willful misconduct on the part by other operation of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amountlaw. (b) On the first Within five (5) Business Day Days following the Initial Claim Termination Escrow Release Date, Acquiror and Acquirer (or its agent) will distribute (by check or wire transfer to the Stakeholders’ Agent will be obligated to instruct account instructions set forth in the Escrow Agent to pay Spreadsheet) to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each Indemnifying Holder such Former StakeholderIndemnifying Holder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount Share of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount less that portion of the Escrow Fund and (ii) a reserve amount equal that relates to the estimate unsatisfied Claims for Indemnifiable Damages that have not finally been disposed of or disputed claims for Indemnifiable Damages set forth that have been objected to pursuant to Section 7.7, which amounts shall remain in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended until such Claims have been satisfied or resolved in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar accordance with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow AgreementSection 7.7.

Escrow Fund. (a) At the Closing, Acquiror will Acquirer shall withhold the Cash Escrow Amount from the Purchase Consideration issuable pursuant to Section 1.3(a) and shall deposit the Cash Escrow Amount with ▇▇▇▇▇ Fargo Bank, N.A. (or another institution selected by Acquirer and reasonably satisfactory to the Company) as escrow agent (the “Escrow Agent”) (the aggregate amount of cash so held by the Escrow Agent an amount equal from time to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amounttime, the “Escrow Fund”), which Escrow Fund shall be governed by this Agreement and the escrow agreement in the form mutually agreed to by Acquirer and the Shareholders’ Agent (the “Escrow Agreement”). The Escrow Fund will be governed by shall constitute partial security for the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available benefit of Acquirer (ion behalf of itself or any other Indemnified Person) with respect to indemnify Acquiror any Indemnifiable Damages pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf obligations of the Former Stakeholders to Acquiror pursuant to Company Securityholders under Section 2.131.6(f), Section 1.6(g) and this Article IX. The Stakeholders’ Escrow Agent shall hold the Escrow Amount will Fund until 11:59 p.m. Pacific time on the date (the “Escrow Release Date”) that is five Business Days after the date that is 18 months after the Closing. The Founders shall not receive interest or other earnings on the cash in the Escrow Fund. Neither the Escrow Fund (including any portion thereof) nor any beneficial interest therein may be availablepledged, without the requirement subjected to any Encumbrance, sold, assigned or transferred by any Founder or be taken or reached by any legal or equitable process in satisfaction of any consent debt or approval other Liability of any Founder, in each case prior to the distribution of the Escrow Fund to any Founder in accordance with Section (b), except that each Founder shall be entitled to assign such Founder’s rights to such Founder’s Escrow Pro Rata Share of the Escrow Fund by Acquirorwill, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence laws of intestacy or willful misconduct on the part by other operation of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amountlaw. (b) On the first Within five Business Day Days following the Initial Claim Termination Escrow Release Date, Acquiror and the StakeholdersEscrow Agent will distribute to each Founder such Founder’s Escrow Pro Rata Share of the Escrow Fund less that portion of the Escrow Fund that is subject to an outstanding Claim Certificate that was delivered to the Shareholders’ Agent will and necessary to satisfy all unsatisfied or disputed claims for indemnification specified in any Claim Certificate delivered to the Shareholders’ Agent on or prior to the Escrow Release Date in accordance with this Article IX. Any portion of the Escrow Fund held by the Escrow Agent following the Escrow Release Date with respect to pending but unresolved claims for indemnification that is not awarded to Acquirer upon the resolution of such claims shall be obligated to instruct distributed by the Escrow Agent to pay to the Founders within five Business Days following resolution of such claims and in accordance with each Former Stakeholder, in immediately available funds from the Indemnity such Founder’s Escrow Amount Pro Rata Share of such portion of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.

Escrow Fund. (a) At Prior to any amount being distributed to any Company Holder pursuant to Section 2.6, the Closing, Acquiror Escrow Fund will deposit be withheld from the Merger Consideration and deposited with the Escrow Agent an amount equal Agent. The Indemnity Portion of the Escrow Fund will be held for the purpose of securing the indemnification obligations of the Company set forth in this Agreement. The Adjustment Portion of the Escrow Fund will be held for the purpose of securing any obligation of the Company to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”make a payment to Purchaser pursuant to Section 2.13(d). The Escrow Fund will be governed by withheld from the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) aggregate amount of Merger Consideration otherwise payable to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror each Company Holder pursuant to Section 2.132.6, with each Company Holder’s portion of the Escrow Fund equal to its Company Holder Percentage Interest. The StakeholdersShareholders’ Agent Expense Portion of the Escrow Amount Fund will be available, without held for the requirement purpose of funding any consent or approval by Acquiror, to indemnify and hold expenses of the StakeholdersShareholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its the Shareholders’ Agent’s duties under in this Agreement and after the Effective Time. The Escrow Agreement will provide for (i) the release of the Adjustment Portion of the Escrow Agreement, and Fund remaining in no event will the escrow account (in accordance with Company Holder Percentage Interests for any of such liabilities, losses, damages, penalties, fines, costs or expenses amounts payable to the StakeholdersCompany Holders) within five (5) Business Days after the final determination of the Merger Consideration pursuant to Section 2.13(c) (but, for the avoidance of doubt, after any required payment to Purchaser pursuant to Section 2.13(d) has been made), (ii) the release, subject to a reserve in the aggregate amount of all pending claims, of the Indemnity Portion of the Escrow Fund remaining in the escrow account (in accordance with Company Holder Percentage Interests for any amounts payable to the Company Holders) within five (5) Business Days after the earlier of (A) the date Purchaser completes an audit of the Company for 2014 (such date to be confirmed in writing by Purchaser to the Shareholders’ Agent), or (B) April 1, 2015; and (iii) the release of the Shareholders’ Agent be paid Expense Portion of the Escrow Fund upon receipt of written notice from the Shareholders’ Agent. Following payment of the last balance remaining in the Indemnity Portion of the Escrow Amount. Fund that was reserved for a claim made by any Indemnified Persons under Section 9 of this Agreement (b) On or the first Business Day following definitive withdrawal or resolution of such claim), and after payment of any Shareholders’ Agent expenses from the Initial Claim Termination DateShareholders’ Agent Expense Portion of the Escrow Fund, Acquiror Purchaser and the StakeholdersShareholders’ Agent will be obligated to instruct direct the Escrow Agent to pay to each Former Stakeholderthe Company Holders (or with respect to the Company Holders that were holders of Vested Company Options that were cancelled under Section 2.6(c)(i), to the Surviving Corporation for payment to the Company Holders who are entitled to such Company Holders through the Surviving Corporation’s payroll) in immediately available funds from the Indemnity Escrow Amount accordance with their Company Holder Percentage Interests an aggregate amount that is equal to any remaining balance of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.

Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (a) At the Closing, an “Acquiror will deposit with the Escrow Agent an amount equal to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow AmountIndemnification Claim”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”)Section 2.9. The Escrow Fund will shall be governed by the terms set forth held and distributed in accordance with this Article VIII and the Escrow Agreement. The Indemnity Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Amount will be available (i) to indemnify Agreement. An Acquiror pursuant Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the indemnification provisions contrary contained in this Agreement, none of the limitations set forth in this Section 9Article 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) to make any payment on behalf the right of the Former Stakeholders 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 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part 468B(g) of the Stakeholders’ Agent Code and arising out of or in connection with the acceptance or administration of its duties under this Agreement Proposed Treasury Regulation Section 1.468B-8; (iv) if and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount. (b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount extent any amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount 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 (iiv) in no event shall the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve total amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal paid to the estimate stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of Damages set forth in the Claims Notices relating preceding sentence is intended to all pending and unresolved Claims. Any reserve amounts held in ensure that the Indemnity Escrow Amount right of the stockholders to the stockholders’ portion of the Escrow Fund following the Final Claim Termination Date that are is not expended in resolving treated as a Claim shall be disbursed to the Former Stakeholders upon final resolution contingent payment without a stated maximum selling price under Section 453 of the Claim to which it relates or if a reasonable person familiar Code and the Treasury Regulations promulgated thereunder. Acquiror, Sub and the Company shall file all Tax Returns consistently with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreementforegoing.

Escrow Fund. (ai) At Notwithstanding the Closingforegoing clause (c), Acquiror will if (i) there is a dispute as to any indemnification claim set forth in a Notice pursuant to Section 10.06(a) above, (ii) the Indemnifying Party is the Indemnifying Securityholders, or any of them, and (iii) one or more installments of the Total Deferred Proceeds remain unpaid at such time, then Buyer shall deposit an amount in cash equal to the amount of Losses in controversy with respect to such dispute (or, in the event such amount exceeds the unpaid portion of the Total Deferred Proceeds at such time, an amount in cash equal to the amount of Total Deferred Proceeds remaining unpaid) (each such amount deposited, an “Escrow Amount”) into escrow with SunTrust Bank, or such other bank or trust company selected by Buyer with Securityholders Representative’s prior approval (which approval shall not be unreasonably withheld, conditioned or delayed) (the “Escrow Agent”), to be held by the Escrow Agent until a Final Determination is made with respect to such dispute and thereafter distributed by the Escrow Agent pursuant to the terms of this Agreement and the Escrow Agent’s standard form of escrow agreement (the “Escrow Agreement”). (ii) Notwithstanding the foregoing, if a dispute is with regard to a Notice that applies to a particular Seller pursuant to Section 10.02(b), then the amount deposited with the Escrow Agent an amount equal of the Total Deferred Proceeds shall only be from the portion of the Total Deferred Proceeds payable to the sum of such particular Seller and shall be administered hereunder as a separate Escrow Amount (a) Three Million Dollars ($3,000,000) (the a “Stakeholders’ Agent Separate Seller Escrow Amount”) applicable to only such Seller and the particular claim or claims applicable to such Seller. If as a result of the deposit of such Separate Seller Escrow Amount into escrow to satisfy any such claim against a particular Seller, or the payment of any such amounts to Buyer as provided below or in accordance with Section 10.06(b)(ii) above, the remaining amount of such Seller’s portion of Total Deferred Proceeds is insufficient to cover such Seller’s portion of indemnifications claims for which all Sellers are jointly and severally liable and which would have otherwise been satisfied from the Total Deferred Proceeds but for the deposit or payment of any Separate Seller Escrow Amount (or payment in accordance with Section 10.06(b)(ii) above), plus then such Seller shall be individually liable to Buyer to the extent of such insufficiency. (biii) Fifty Five Million Dollars The Escrow Amounts ($55,000,000) (including all Separate Seller Escrow Amounts”), and all interest and other direct or indirect earnings thereon after the Closing, are collectively hereinafter referred to as the “Indemnity Escrow Fund.” (iv) In the event that as a result of a Final Determination, an Escrow Amount (or some portion thereof) or a Separate Seller Escrow Amount (or some portion thereof) is owed to the Buyer Indemnified Parties (such amount owed, the “Final Adjustment Amount” and collectively with the Stakeholders’ Agent difference between the Final Adjustment Amount and the Escrow Amount or Separate Seller Escrow Amount, if any, as applicable, the “Escrow FundRemainder”), then within three Business Days of the Final Determination, Buyer and Securityholders Representative shall execute and deliver to the Escrow Agent a joint written instruction directing the Escrow Agent to release to Buyer the Final Adjustment Amount and the Remainder, if any, shall be held by the Escrow Agent until such time as it is payable as Total Deferred Proceeds hereunder, at which point Buyer and Securityholders Representative shall execute and deliver to the Escrow Agent a joint written instruction directing the Escrow Agent to release to Sellers, the Optionholder and the Indemnifying Bonus Plan Participants, as applicable, the Remainder. In such event, the Total Deferred Proceeds owed by Buyer hereunder shall be automatically reduced by the Final Adjustment Amount with such reduction applied first to the last Total Deferred Proceeds held in escrow that would have been otherwise payable under this Agreement. (v) In the event that as a result of a Final Determination, an Escrow Amount (or some portion thereof) or a Separate Seller Escrow Amount (or some portion thereof) is not owed to the Buyer Indemnified Parties, then within three Business Days of the Final Determination, Buyer and Securityholders Representative shall execute and deliver to the Escrow Agent a joint written instruction directing the Escrow Agent to release to Sellers, the Optionholder and the Indemnifying Bonus Plan Participants, as applicable, such Escrow Amount (or such portion thereof) or such Separate Seller Escrow Amount (or such portion thereof) and the remainder, if any, shall be held by the Escrow Agent until such time as it is payable as Total Deferred Proceeds hereunder, at which point Buyer and Securityholders Representative shall execute and deliver to the Escrow Agent a joint written instruction directing the Escrow Agent to release to Sellers, the Optionholder and the Indemnifying Bonus Plan Participants, as applicable, such remainder. In such event, any such Escrow Amounts or Separate Seller Amounts so released shall (if released prior to the date otherwise payable as Total Deferred Proceeds) be treated as an advanced payment of the Total Deferred Proceeds owed by Buyer hereunder and Buyer’s obligation to make future payments shall be correspondingly reduced by such released amounts. (vi) The Parties acknowledge that Buyer shall be treated as the owner of the entire Indemnity Escrow Fund will and shall be governed by responsible for any Taxes attributable to income earned in respect of the Indemnity Escrow Fund until such time as the Indemnity Escrow Fund is disbursed in accordance with the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, . All cash included in the Indemnity Escrow Fund shall be held in an interest-bearing account in accordance with the terms of the Escrow Agreement and in no event Buyer will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid receive from the Indemnity Escrow Amount. (b) On Fund on a quarterly basis a distribution equal to the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from amount of taxable income earned on the Indemnity Escrow Amount Fund multiplied by the highest marginal federal, state and local income tax rate applicable to Buyer for purposes of the Escrow Fund, a dollar amount equal Buyer’s payment of any Taxes attributable to each such Former Stakeholder’s Pro Rata Portion income earned in respect of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived as further provided by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.

Escrow Fund. (a) At the Closing, Acquiror will deposit Concurrently with the execution hereof, the Escrow Agent, in its capacity as Exchange Agent an amount equal pursuant to the sum Merger Agreement, has established an escrow fund consisting of three separate escrow accounts representing (ai) Three Million Dollars the Holdback Escrowed Shares ($3,000,000ii) the Additional Escrowed Shares and (iii) the Derivative Escrowed Shares (individually the “Stakeholders’ Agent Escrow AmountHoldback Escrowed Shares Fund”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow AmountAdditional Escrowed Shares Fund” and “Derivative Escrowed Shares Fund”, and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”). The Escrow Fund will be governed by Agent shall maintain separate accounts for each Holder's and each Derivative Holder’s portion of each of the terms set forth in three (3) separate escrow accounts comprising the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow AmountFund. (b) The Parent has withheld ten percent (10%) of the Closing Shares issuable to the Holders pursuant to the Merger Agreement, pro rata in accordance with the number of Closing Shares issuable to each Holder, which represents the Holdback Escrowed Shares Fund and shall be deposited with the Escrow Agent at the Effective Time. (c) In accordance with Section 2.13(b) of the Merger Agreement the Parent shall deposit with the Escrow Agent into the Holdback Escrowed Shares Fund ten percent (10%) of that number of shares of Parent Common Stock issuable (if any) to holders of Employee Options pursuant to Section 2.13(a)(i) of the Merger Agreement, pro rata in accordance with the number of shares of Parent Common Stock issuable to each such holder of Employee Options. (d) In accordance with Section 2.18(b) of the Merger Agreement the Parent shall deposit with the Escrow Agent into the Holdback Escrowed Shares Fund ten percent (10%) of that number of Parent Common Stock issuable (if any) to holders of Company Warrants pursuant to Section 2.18(a)(i) of the Merger Agreement, pro rata in accordance with the number of shares of Parent Common Stock issuable to each such holder of Company Warrants. (e) Promptly after the Effective Time and in no event more than three (3) Business Days thereafter Parent shall deposit and the Escrow Agent shall hold in the Additional Escrowed Shares Fund certificates representing 10,000,000 shares of Parent Common Stock, pro rata in accordance with the number of Additional Shares issuable (if any) to each Holder. (f) On the first Business Day following instruction of Parent, the Initial Claim Termination DateEscrow Agent shall transfer from the Additional Escrowed Shares Fund to the Derivative Escrowed Shares Fund any Additional Escrowed Shares that become Derivative Escrowed Shares. (g) The Escrow Agent hereby agrees to act as escrow agent and to hold, Acquiror safeguard and disburse the Stakeholders’ Escrow Fund pursuant to the terms and conditions hereof. It shall treat the Escrow Fund as a trust fund in accordance with the terms of this Agreement and not as the property of Parent. Its duties hereunder shall cease upon its distribution of the entire Escrow Fund in accordance with this Agreement. (h) Except as herein provided, the Holders shall retain all of their rights as stockholders of Parent during the period the Holdback Escrowed Shares are held by the Escrow Agent will (the “Holdback Escrow Period”), including, without limitation, the right to vote their Parent Common Stock Shares included in the Holdback Escrowed Shares Fund. (i) During the Holdback Escrow Period, all dividends payable in cash with respect to the shares of Parent Common Stock included in the Holdback Escrowed Shares Fund shall be obligated paid to instruct the Holders, but all dividends payable in stock or other non-cash property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent to pay hold in accordance with the terms hereof. As used herein, the term “Holdback Escrowed Shares Fund” shall be deemed to each Former Stakeholderinclude the Non-Cash Dividends distributed thereon, in immediately available funds from if any. (j) During the Indemnity Holdback Escrow Amount Period, no sale, transfer or other disposition may be made of any or all of the shares of Parent Common Stock in the Holdback Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between Fund except (i) by gift to a member of a Holder's immediate family or to a trust, the aggregate amount then held in the Indemnity Escrow Amount beneficiary of the Escrow Fund and which is a Holder or a member of a Holder's immediate family, (ii) by virtue of the sum laws of descent and distribution upon death of any Holder, (Aiii) Twenty Three Million Dollars pursuant to a qualified domestic relations order or ($23,000,000iv) if the Holder is not a natural person to an “affiliate” of the Holder; provided, however, that such permissive transfers may be implemented only upon the respective transferee's written agreement to be bound by the terms and conditions of this Agreement. During the Holdback Escrow Period, the Holders shall not pledge or grant a security interest in the shares of Parent Common Stock included in the Holdback Escrow Fund or grant a security interest in their rights under this Agreement. (the “Three Year Escrow Amount”k) and (B) a reserve amount equal The Holders shall not have any rights with respect to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct Additional Escrowed Shares held by the Escrow Agent pursuant to pay this Escrow Agreement (including, but not limited to, the right to each Former Stakeholdervote such Additional Escrowed Shares) until, and only to the extent of, the distribution of Additional Escrowed Shares to the Holders. In addition, the Holders shall not be entitled to any dividends of any of kind with respect to any Additional Escrowed Shares held by the Escrow Agent; provided, however, that in immediately available funds from the Indemnity Escrow Amount event that any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock), extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Common Stock, Parent shall deposit a sufficient number of additional shares of Parent Common Stock into the Additional Escrowed Shares Fund in order to comply with Section 2.5(d) of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Merger Agreement.

Escrow Fund. PNC Bank, National Association, or another Person selected by Acquiror, shall serve as the escrow agent in connection with the Merger (athe “Escrow Agent”) pursuant to an Escrow Agreement in substantially the form attached hereto as Exhibit J (the “Escrow Agreement”), which will be entered into at the Closing. At the Closing, (a) Acquiror will deposit 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 amount equal account designated by the Escrow Agent in a written notice delivered to Acquiror at least two (2) Business Days prior to the sum of (a) Three Million Dollars ($3,000,000) Closing Date (the “Stakeholders’ Agent Escrow Amount”)Amount in such account, plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” together with any dividends and collectively with the Stakeholders’ Agent Escrow Amountincome earned on thereon, as may be reduced from time to time, the “Escrow Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Escrow Fund, on behalf of each Indemnifying Party, his, her, or its Pro Rata Portion of the Escrow Amount. The Escrow Fund will be governed by the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will shall be available (i) to indemnify Acquiror pursuant to compensate the indemnification provisions set forth in this Section 9, and (ii) to make Indemnified Parties for any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of claims by such parties for any consent Losses suffered or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent them and arising out of or in connection for which they are entitled to recovery under Section 2.4 and Article IX and, solely with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount. (b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay respect to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former StakeholderIndemnified Party’s Pro Rata Portion of the difference between (i) Escrow Fund, recovery under such Indemnified Party’s Holder Support Agreement, and shall be distributed in accordance the aggregate amount then held terms and conditions of this Agreement and the Escrow Agreement and, as applicable, the Holder Support Agreements. The parties hereto agree that Acquiror shall be treated as the owner of the cash in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal for all Tax purposes until such funds are disbursed pursuant to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror this Agreement and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former StakeholderAgreement and that all interest on or other taxable income, in immediately available funds if any, earned from the Indemnity Escrow Amount investment of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held cash in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal pursuant to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim Agreement shall be disbursed to the Former Stakeholders upon final resolution treated for Tax purposes as reportable income of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow AgreementAcquiror.

Escrow Fund. Notwithstanding the provisions of Sections 3.1(a)-(f), Parent shall (ai) (1) At at the Closing, Acquiror (A) withhold from each Participating Stockholder a portion of the Initial Closing Consideration otherwise allocable to such Participating Stockholder equal to his, her or its Pro Rata Portion of the Initial Escrow Amount, (B) withhold from each Plan Participant, his, her or its Pro Rata Portion of the Initial Escrow Amount, and (C) withhold from each Bonus Participant, his, her or its Pro Rata Portion of the Initial Escrow Amount, and (2) if Additional Total Consideration is paid prior to the Expiration Date, withhold from (A) each Participating Stockholder a portion of the Additional Escrow Amount otherwise allocable to such Participating Stockholder equal to his, her or its Pro Rata Portion of the Additional Escrow Amount, (B) withhold from each Plan Participant, his, her or its Pro Rata Portion of the Additional Escrow Amount, and (C) withhold from each Bonus Participant, his, her or its Pro Rata Portion of the Additional Escrow Amount, and (ii) cause such withheld amounts and shares to be deposited with a mutually agreed upon escrow agent (the "ESCROW AGENT"), in accordance with the terms of the Escrow Agreement and Article IX (the "ESCROW FUND"); provided, however, if Additional Total Consideration is paid after the Expiration Date and Parent has suffered Parent Indemnifiable Losses under Section 9.2 in excess of the Initial Escrow Amount, Parent shall deduct from (A) each Participating Stockholder his, her or its Pro Rata Portion of such Parent Indemnifiable Losses, not to exceed the Additional Escrow Amount otherwise allocable to such Participating Stockholder, (B) withhold from each Plan Participant, his, her or its Pro Rata Portion of such Parent Indemnifiable Losses, not to exceed the Additional Escrow Amount otherwise allocable to such Plan Participant and (C) withhold from each Bonus Participant, his, her or its Pro Rata Portion of such Parent Indemnifiable Losses, not to exceed the Additional Escrow Amount otherwise allocable to such Bonus Participant. The Participating Stockholders shall have the sole and exclusive right to exercise any and all voting and consensual rights and powers, and shall be entitled to receive and retain any and all cash dividends, accruing to an owner of such Participating Stockholder's respective portion of the shares of Parent Common Stock pursuant to the terms of the Escrow Agreement. For income tax purposes, the Participating Stockholders shall be deemed the owners of their portion of the Escrow Fund, all earnings on investments of the Participating Stockholders' portion of the cash deposited by Parent shall be reported by the applicable Participating Stockholder, and the Participating Stockholders will deposit with be responsible for paying all taxes on such earnings. The parties hereto acknowledge and agree that they will not treat any portion of a payment to the Participating Stockholders from the Escrow Fund upon release of the amounts held pursuant to the Escrow Agreement as a payment of interest to the Participating Stockholders by Parent, except as otherwise required by a taxing authority. The parties shall instruct the Escrow Agent to disburse funds to the Stockholder Representative for payment to the Participating Stockholders within thirty (30) days following each calendar year in an amount equal to the sum net amount of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”). The Escrow Fund will be governed by the terms set forth all earnings on investments of such cash deposit held in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant Fund allocable to the indemnification provisions set forth Participating Stockholders earned in this Section 9, and such calendar year multiplied by forty-five percent (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount45%). (b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.

Escrow Fund. The Escrow Amount (ai) At the Closing, Acquiror will deposit with shall be held in an account of the Escrow Agent an amount equal Agent, to be established and maintained by the sum of Escrow Agent, and (aii) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”)as adjusted from time to time, plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively together with the Stakeholders’ Agent Escrow Amountany interest thereon, shall be referred to as the “Escrow Fund”). The Escrow Agent shall release the Escrow Fund will be governed by in accordance with the terms set forth in of the Escrow Agreement. The Indemnity Escrow Amount will be available Sellers’ Representative (i) to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment acting solely on behalf of the Former Stakeholders Sellers and in its capacity as the Sellers’ Representative, not in its individual capacity) and the Purchaser each agrees to Acquiror reimburse the Escrow Agent (or each other in the event that either has already paid amounts to the Escrow Agent) for fifty percent (50%) of any amounts that become due to the Escrow Agent pursuant to Section 2.13. The Stakeholdersthe terms of the Escrow Agreement; provided that the foregoing provision allocating liability fifty percent (50%) to the Purchaser and fifty percent (50%) to the Sellers’ Agent Escrow Amount will Representative (acting solely on behalf of the Sellers) may not be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred relied upon: (i) by the Stakeholders’ Purchaser where the liability to the Escrow Agent without has resulted from the Purchaser’s fraud, gross negligence or willful misconduct misconduct, in which case the Sellers’ Representative shall be entitled to seek reimbursement from the Purchaser to the extent the Sellers’ Representative (acting solely on the part behalf of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable Sellers) has paid to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount. (b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, any amounts in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and connection therewith; or (ii) by the sum of (A) Twenty Three Million Dollars ($23,000,000) (Sellers’ Representative where the “Three Year Escrow Amount”) and (B) a reserve amount equal liability to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholderhas resulted from the Sellers’ Representative’s or any Seller’s fraud, gross negligence or willful misconduct, in immediately available funds which case the Purchaser shall be entitled to seek reimbursement from the Indemnity Escrow Amount of Sellers to the extent the Purchaser has paid to the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held Agent any amounts in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreementconnection therewith.

Escrow Fund. (a) At the ClosingEffective Time, Acquiror will deposit with Parent shall fund the Escrow Fund by delivering or causing to be delivered the Escrow Amount to the Escrow Agent an amount equal pursuant to the sum provisions of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”). The Escrow Fund will be governed by the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will (or any portion thereof) shall be available (i) to indemnify Acquiror pursuant distributed from the Escrow Fund to the indemnification provisions Equityholders and Parent at the times, and upon the terms and conditions, set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement. Promptly following the one (1) year anniversary of the Effective Time, Parent and Equityholders’ Representative shall cause the Escrow Agent to deliver to the Paying Agent for distribution to the Equityholders in the amounts described in Sections 2.04(c)(iv), 2.05(a)(iv), and in no event will any of such liabilities2.06(d), losses, damages, penalties, fines, costs or expenses payable an amount equal to the Stakeholders’ Agent be paid greater of (i) zero and (ii) fifteen million dollars ($15,000,000) less the sum of the aggregate amount of all pending claims made against the Escrow Fund and all distributions made from the Indemnity Escrow Amount. Promptly following the thirty (30) month anniversary of the Effective Time, Parent and Equityholders’ Representative shall cause the Escrow Agent to deliver any portion of the Escrow Fund then remaining to the Paying Agent for distribution to the Equityholders in the amounts described in Sections 2.04(c)(iv), 2.05(a)(iv), and 2.06(d) (subject to retention by the Escrow Agent of any portion of the Escrow Fund subject to pending claims, which such portions shall be released to the Paying Agent for distribution to the Equityholders at the times and subject to the conditions described in the Escrow Agreement). (b) On The adoption of this Agreement and approval of the first Business Day following Merger by the Initial Claim Termination DateCompany Stockholders pursuant to the Stockholders’ Written Consent, Acquiror the delivery of the letters of transmittal pursuant to Section 3.03(b), and the Stakeholders’ Agent will be obligated to instruct execution of the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from Option Holder Consent Agreements and the Indemnity Escrow Amount Warrant Holder Consent Agreements shall constitute approval by the Equityholders of the terms and provisions of the Escrow FundAgreement and the transactions contemplated thereby, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion and the irrevocable agreement of the difference between (i) Equityholders to be bound by and comply with the aggregate amount then held in Escrow Agreement and all of the Indemnity Escrow Amount arrangements and provisions of this Agreement relating thereto, including the deposit of the Escrow Fund and (ii) Amount into escrow, the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages indemnification obligations set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination DateArticle IX hereof, Acquiror and the Stakeholders’ Agent will be obligated appointment and sole authority to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount act on behalf of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion Equityholders of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund Equityholders’ Representative, as provided for herein and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.

Escrow Fund. The Acquiror simultaneously herewith delivers to the Escrow Agent, in accordance with the Purchase Agreement, an amount in cash equal to US$13,600,000 (the “Escrow Cash”) to be held by the Escrow Agent in accordance with the terms of this Agreement (Escrow Cash so held by the Escrow Agent, from time to time, together with any additional deposits made by Acquiror upon determination of the Adjusted Base Purchase Price and with any interest or other income earned thereon, being hereinafter referred to as the “Escrow Funds”). By wire transfer of the Acquiror payable to the Escrow Agent, the Acquiror shall make a payment of 10% of the amount of any increase in the Preliminary Base Purchase Price pursuant to Section 2.10(h)(iii) of the Purchase Agreement in accordance with Section 2.11 of the Purchase Agreement. The Escrow Agent hereby agrees to act with respect to the Escrow Funds as hereinafter set forth. The Escrow Funds will be retained by the Escrow Agent for safekeeping pursuant to the terms hereof (a) At as security for the Closingindemnity obligations of the Sellers under Article VII of the Purchase Agreement, Acquiror will deposit with the Escrow Agent an amount equal to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (to satisfy, in accordance with Sections 2.10 and 2.11 of the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow AmountPurchase Agreement, the “Escrow Fund”). The Escrow Fund will be governed by the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant any post-closing adjustment obligations to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent 2.10(h)(i) of the Purchase Agreement and (c) to receive into the Escrow Amount will be available, without the requirement Funds 10% of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount. (b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held increase in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders Preliminary Base Purchase Price as set forth in Sections 2.10 and 2.11 of the Escrow AgreementPurchase Agreement in the event of an increase to the Preliminary Base Purchase Price under Section 2.10(h)(iii).

Escrow Fund. (a) At the ClosingEffective Time, Acquiror will Acquirer shall withhold the Escrow Amount from the Merger Consideration otherwise payable pursuant to Section 1.3(a)(i) (with respect to shares of Company Capital Stock), Section 1.3(a)(iii) (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 “Escrow Agent”) (the aggregate amount of cash so held by the Escrow Agent an amount equal from time to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”)time, plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively together with the Stakeholders’ Agent Escrow Amountany interest earned on such cash, the “Escrow Fund”). The , which Escrow Fund will shall be governed by the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will . The Escrow Fund shall constitute partial security for the benefit of Acquirer (on behalf of itself or any of such liabilities, losses, damages, penalties, fines, costs or expenses payable other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the Stakeholders’ indemnification obligations of the Converting Holders under Section 1.5 and the indemnification obligations of the Converting Holders under this Article 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, the Converting Holders shall not receive interest or other earnings on the cash in the Escrow Fund. Neither the Escrow Fund (including any portion thereof) nor any beneficial interest therein may be paid from 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 Indemnity distribution of the Escrow AmountFund to any Converting Holder in accordance with Section 8.1(b), except that each Converting Holder shall be entitled to assign such Converting Holder’s rights to such Converting Holder’s Pro Rata Share of the Escrow Fund by will, by the laws of intestacy or by other operation of law. (b) On the first Within five (5) Business Day Days following the Initial Claim Termination Escrow Release Date, Acquiror and the Stakeholders’ Agent Acquirer (or its agent) will be obligated to instruct the Escrow Agent to pay distribute to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each Converting Holder such Former StakeholderConverting Holder’s Pro Rata Portion Share of the difference between (i) remaining Escrow Fund less that portion of the aggregate amount then held remaining Escrow Fund that is determined, in the Indemnity reasonable judgment of Acquirer, to be necessary to satisfy all unsatisfied or disputed claims for indemnification specified in any Claim Certificate delivered to the Converting Holders’ Agent on or prior to the Escrow Amount of Release Date in accordance with this Article VIII, which portion shall remain in the Escrow Fund until such claims for Indemnifiable Damages have been resolved or satisfied (and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders distributed promptly upon final such resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreementsatisfaction).