Common use of Establishment of Remedy Fund Clause in Contracts

Establishment of Remedy Fund. Contemporaneous with the consummation of the Merger, the Exchange Agent shall deliver in escrow to TRG, as escrow agent pursuant to the Escrow Agreement attached hereto as EXHIBIT H and subject to the provisions of SECTION 10.03, below, (x) all of the certificates for shares of Class B Preferred Stock comprising part of the Merger Consideration, (the "Preferred Escrow Shares") and (y) certificates for 100,000 shares of Class A Common Stock comprising part of the Merger Consideration registered in the name of TRG (the "TRG Escrow Shares"; together with the Preferred Escrow Shares, collectively the "Remedy Fund"). To facilitate the transfer of the Preferred Escrow Shares pursuant to the Escrow Agreement, TRG is hereby designated and appointed by each holder of Class B Preferred Stock as the agent with irrevocable power of attorney to execute such stock powers as may be required to effectuate any transfer of the Preferred Escrow Shares. The Remedy Fund shall also include any and all stock distributions made in respect of the securities in the Remedy Fund, such distributions to be held pursuant to the Escrow Agreement. Subject to the limitations set forth in this ARTICLE X, hereof, from and after the Effective Time, (i) the entire Remedy Fund shall be available to compensate the Surviving Corporation for any Damages which may be sustained, suffered or incurred by it, whether as a result of any Third Party Claim or otherwise, which arise from or are in connection with or are attributable to (x) the breach of any of the covenants, representations, warranties, agreements, obligations or undertakings of Motoguzzi contained in this Agreement, or (y) any judgment, order, government notice, government demand or other government sanction, including any remediation or other action taken in response thereto, arising out of or based upon any condition existing at the Closing Date which is not described in the Ecoservice Srl report identified in the Motoguzzi Disclosure Schedules and which violates any Laws, regardless of whether the representation in SECTION 3.07 (b) or (c) is breached, and (ii) the TRG Escrow Shares and such of the Preferred Escrow Shares as are owned by TRG shall also be available to compensate the Surviving Corporation for any Damages which may be sustained, suffered or incurred by it, whether as a result of any Third Party Claim or otherwise, which arise from or are in connection with or are attributable to the breach of any of the covenants, representations, warranties, agreements, obligations or undertakings of TRG contained in this Agreement. Upon final adjudication or resolution of a claim under this ARTICLE X, TRG shall first deliver to the Surviving Corporation, such full number of the Preferred Escrow Shares held in the Remedy Fund as equals or fractionally exceeds the adjudicated or resolved amount of such claim divided by the Market Price (as defined below) of the Class A Common Stock plus $1.00, and if the claim is not fully recompensed by the delivery of the Preferred Escrow Shares, then, additionally, that full number of TRG Escrow Shares held in the Remedy Fund as equals or fractionally exceeds the amount of such claim remaining after delivery of the Preferred Escrow Shares divided by the Market Price of the Class A Common Stock. The "Market Price" of a share of Class A Common Stock will be deemed to be the average of the last sales prices of the Class A Common Stock for the ten business days ending on the day immediately prior to the final adjudication or resolution of a claim under this ARTICLE X, as reported by The Nasdaq Stock Market or any other United States stock exchange on which the Class A Common Stock is listed, or in the absence of such reported prices, the determination of Market Price shall be made jointly by TRG and the Independent Committee. Any TRG Escrow Shares and Preferred Escrow Shares delivered to the Surviving Corporation in settlement of a claim under this ARTICLE X will be canceled and returned to the status of authorized and un-issued shares of capital stock of the Surviving Corporation. If the Merger is consummated, TRG shall not, in any event, have any liability to North, the Surviving Corporation, their respective stockholders or any other person for any Damages except to the extent of its interest in the Remedy Fund. 42

Establishment of Remedy Fund. Contemporaneous with the consummation of the Merger, the Exchange Agent shall deliver in escrow to TRG, as escrow agent pursuant to the Escrow Agreement attached hereto to the Original Agreement as EXHIBIT Exhibit H and subject to the provisions of SECTION 10.03, below, (x) all Section 10.03 of the Original Agreement as amended by this First Amendment, certificates for 200,000 shares of Class B Preferred A Common Stock comprising part of the Merger Consideration, (the "Preferred Escrow SharesRemedy Fund") and (y) certificates for 100,000 ), which Remedy Fund shall reduce, pro rata, the number of shares of Class A Common Stock comprising part to be received by the holders of Old Motoguzzi Common Stock, Old Moto Guzzi Preferred Stock and Old Moto Guzzi Warrants which are surrendered as provided in Section 2.06(a) of the Merger Consideration registered in the name of TRG (the "TRG Escrow Shares"; together with the Preferred Escrow Shares, collectively the "Remedy Fund")Original Agreement. To facilitate the transfer of the Preferred Escrow Shares shares in the Remedy Fund pursuant to the Escrow Agreement, TRG is hereby designated and appointed by each holder of Class B Preferred A Common Stock comprising part of the Merger Consideration as the agent with irrevocable power of attorney to execute such stock powers as may be required to effectuate any transfer of such shares in the Preferred Escrow SharesRemedy Fund. The Remedy Fund shall also include any and all stock distributions made in respect of the securities in the Remedy Fund, such distributions to be held pursuant to the Escrow Agreement. Subject to the limitations set forth in Article X of the Original Agreement as amended by this ARTICLE X, hereofFirst Amendment, from and after the Effective Time, (i) the entire Remedy Fund shall be available to compensate the Surviving Corporation for any Damages which may be sustained, suffered or incurred by it, whether as a result of any Third Party Claim or otherwise, which arise from or are in connection with or are attributable to (x) the breach of any of the covenants, representations, warranties, agreements, obligations or undertakings of Motoguzzi contained in this Agreement, or (y) any judgment, order, government notice, government demand or other government sanction, including any remediation or other action taken in response thereto, arising out of or based upon any condition existing at the Closing Date which is not described in the Ecoservice Srl report identified in the Motoguzzi Disclosure Schedules and which violates any Laws, regardless of whether the representation in SECTION Section 3.07 (b) or (c) of the Original Agreement is breached, breached and (ii) the TRG Escrow Shares and such that portion of the Preferred Escrow Shares as are Remedy Fund which consists of shares of Class A Common Stock owned by TRG or OAM shall also be available to compensate the Surviving Corporation for any Damages which may be sustained, suffered or incurred by it, whether as a result of any Third Party Claim or otherwise, which arise from or are in connection with or are attributable to the breach of any of the covenants, representations, warranties, agreements, obligations or undertakings of TRG contained in this Agreement. Upon final adjudication or resolution of a claim under Article X of the Original Agreement as amended by this ARTICLE XFirst Amendment, TRG shall first deliver to the Surviving Corporation, such full number of the Preferred Escrow Shares shares held in the Remedy Fund as equals or fractionally exceeds the adjudicated or resolved amount of such claim divided by the Market Price (as defined below) of the Class A Common Stock plus $1.00, and if the claim is not fully recompensed by the delivery of the Preferred Escrow Shares, then, additionally, that full number of TRG Escrow Shares held in the Remedy Fund as equals or fractionally exceeds the amount of such claim remaining after delivery of the Preferred Escrow Shares divided by the Market Price of the Class A Common Stock. The "Market Price" of a share of Class A Common Stock will be deemed to be the average of the last sales prices of the Class A Common Stock for the ten business days ending on the day immediately prior to the final adjudication or resolution of a claim under Article X of the Original Agreement as amended by this ARTICLE XFirst Amendment, as reported by The Nasdaq Stock Market or any other United States stock exchange on which the Class A Common Stock is listed, or in the absence of such reported prices, the determination of Market Price shall be made jointly by TRG and the Independent Committee. Any TRG Escrow Shares and Preferred Escrow Shares shares delivered to the Surviving Corporation in settlement of a claim under Article X or the Original Agreement as amended by this ARTICLE X First Amendment, will be canceled and returned to the status of authorized and un-issued shares of capital stock of the Surviving Corporation. If the Merger is consummated, TRG shall not, in any event, have any liability to North, the Surviving Corporation, their respective stockholders or any other person for any Damages except to the extent of its interest in the Remedy Fund. 42."

Establishment of Remedy Fund. Contemporaneous with the consummation of the Merger, the Exchange Agent shall deliver in escrow to TRG, as escrow agent pursuant to the Escrow Agreement attached hereto as EXHIBIT Exhibit H and subject to the provisions of SECTION Section 10.03, below, (x) all of the certificates for shares of Class B Preferred Stock comprising part of the Merger Consideration, (the "Preferred Escrow Shares") and (y) certificates for 100,000 shares of Class A Common Stock comprising part of the Merger Consideration registered in the name of TRG (the "TRG Escrow Shares"; together with the Preferred Escrow Shares, collectively the "Remedy Fund"). To facilitate the transfer of the Preferred Escrow Shares pursuant to the Escrow Agreement, TRG is hereby designated and appointed by each holder of Class B Preferred Stock as the agent with irrevocable power of attorney to execute such stock powers as may be required to effectuate any transfer of the Preferred Escrow Shares. The Remedy Fund shall also include any and all stock distributions made in respect of the securities in the Remedy Fund, such distributions to be held pursuant to the Escrow Agreement. Subject to the limitations set forth in this ARTICLE Article X, hereof, from and after the Effective Time, (i) the entire Remedy Fund shall be available to compensate the Surviving Corporation for any Damages which may be sustained, suffered or incurred by it, whether as a result of any Third Party Claim or otherwise, which arise from or are in connection with or are attributable to (x) the breach of any of the covenants, representations, warranties, agreements, obligations or undertakings of Motoguzzi contained in this Agreement, or (y) any judgment, order, government notice, government demand or other government sanction, including any remediation or other action taken in response thereto, arising out of or based upon any condition existing at the Closing Date which is not described in the Ecoservice Srl report identified in the Motoguzzi Disclosure Schedules and which violates any Laws, regardless of whether the representation in SECTION Section 3.07 (b) or (c) is breached, and (ii) the TRG Escrow Shares and such of the Preferred Escrow Shares as are owned by TRG shall also be available to compensate the Surviving Corporation for any Damages which may be sustained, suffered or incurred by it, whether as a result of any Third Party Claim or otherwise, which arise from or are in connection with or are attributable to the breach of any of the covenants, representations, warranties, agreements, obligations or undertakings of TRG contained in this Agreement. Upon final adjudication or resolution of a claim under this ARTICLE Article X, TRG shall first deliver to the Surviving Corporation, such full number of the Preferred Escrow Shares held in the Remedy Fund as equals or fractionally exceeds the adjudicated or resolved amount of such claim divided by the Market Price (as defined below) of the Class A Common Stock plus $1.00, and if the claim is not fully recompensed by the delivery of the Preferred Escrow Shares, then, additionally, that full number of TRG Escrow Shares held in the Remedy Fund as equals or fractionally exceeds the amount of such claim remaining after delivery of the Preferred Escrow Shares divided by the Market Price of the Class A Common Stock. The "Market Price" of a share of Class A Common Stock will be deemed to be the average of the last sales prices of the Class A Common Stock for the ten business days ending on the day immediately prior to the final adjudication or resolution of a claim under this ARTICLE Article X, as reported by The Nasdaq Stock Market or any other United States stock exchange on which the Class A Common Stock is listed, or in the absence of such reported prices, the determination of Market Price shall be made jointly by TRG and the Independent Committee. Any TRG Escrow Shares and Preferred Escrow Shares delivered to the Surviving Corporation in settlement of a claim under this ARTICLE Article X will be canceled and returned to the status of authorized and un-issued shares of capital stock of the Surviving Corporation. If the Merger is consummated, TRG shall not, in any event, have any liability to North, the Surviving Corporation, their respective stockholders or any other person for any Damages except to the extent of its interest in the Remedy Fund. 42.