Common use of Escrow Fund Clause in Contracts

Escrow Fund. As security for the indemnity provided for in this Section 8.02 and by virtue of this Agreement, the 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 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 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, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) 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 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (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 in this Agreement, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time.

Escrow Fund. As In addition to the indemnification obligation of the Principal Stockholders which shall not be limited to the Escrow Amount, as security for the indemnity provided for in this Section 8.02 7.2 hereof and by virtue of this AgreementAgreement and the Company Stockholders' approval thereof, at the Effective Time, 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of 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 Stockholder Representative Securityholder Agent (as defined in Section 8.037.3(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 hereinherein and at Parent's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") for any 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 in this Agreementherein, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreementherein, (iii) the failure of the Company's Cash Account to contain an amount of cash that equals or exceeds the Third Party Expenses incurred by the Company for which failure the Total Consideration has not been previously reduced, or (iiiiv) any action, suit the payment by Parent or proceeding which is pending or threatened against the Company as of any amount on account of Dissenting Shares in excess of the Effective Timeconsideration which would have otherwise been received if such shares were not Dissenting Shares. No Stockholder shall have Other than with respect to knowing, willful or intentional breaches of the representations, warranties or covenants made in connection with this Agreement or the Merger, Parent may not receive any right to contribution shares from the Company for any claim made by Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed the Threshold Amount, have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent after may recover from the Effective TimeEscrow Fund the total of its Losses including the Threshold Amount.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other an institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.03)7.2(g) below) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(a). No portion of the Escrow Amount shall be contributed in respect of any Company Options or warrants. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") 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 in this AgreementArticle II herein (as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, herein. The amount of any Losses shall be net of (a) any amount for which reimbursement is received by Parent or the Surviving Corporation pursuant to insurance policies or (iiib) any action, suit Tax benefit (or proceeding which is pending or threatened against decrese in Tax liabilities) attributable to such Losses. Parent and the Company as of 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. No Stockholder Nothing herein shall have any right to contribution from limit the liability of the Company for any claim made by breach of any representation, warranty or covenant if the Merger does not close. Parent after may not receive any shares from the Effective TimeEscrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $250,000, have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent may recover from the Escrow Fund the total of its Losses in excess of $250,000.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Major Stockholder will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow Amount) without any act of 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 Citicorp Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (N.A., California as defined in Section 8.03)) as Escrow Agent escrow agent (the "Escrow Agent"), such cash representing the Escrow Amount without any act of Major Stockholder. Such deposit to will 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 herein and prior at Parent's sole cost and expense (and to the Effective Timeextent Parent fails to pay such costs and expenses, and Parent shall reimburse the Escrow Fund for 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 heretoamount). The No portion of the Escrow Amount contributed on behalf of each Stockholder shall be contributed in proportion to the aggregate Parent respect of any Company Options or Company Common Stock to which such holder would otherwise be entitled under Section 1.06Stock. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") for any Loss incurred by Parent, its officers, directors, or affiliates Affiliates (including the Surviving Corporation) ), in good faith, directly or indirectly as a result of any (i) any inaccuracy or breach of a representation or warranty of Company contained herein (as modified by the Company contained in this AgreementDisclosure Letter as updated), (ii) any failure by the Company to perform or comply with any covenant contained in this Agreementherein, or (iii) payment in respect of Dissenting Shares which exceeds the consideration that otherwise would have been payable in respect of such shares; provided, however, that Parent will use commercially reasonable efforts to minimize its Losses. Parent and Company 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 consideration payable by Parent pursuant to Section 2.6. Nothing herein shall limit the liability of Company for any actionbreach of any representation, suit warranty or proceeding which is pending or threatened covenant (as modified by the Company Disclosure Letter as updated) if the Merger does not close. Resort to the Escrow Fund shall be the exclusive contractual remedy of Parent and its Affiliates against the Company or any of its directors, officers, representatives, agents, stockholders or Affiliates for any such breaches and misrepresentations if the Merger closes. Parent shall be entitled to receive cash from the Escrow Fund only to the extent the aggregate amount by which Losses incurred with respect to all matters set forth above exceed a "deductible" of $250,000 and then only to the extent of such excess. The amount of Losses hereunder shall be reduced by after-tax amounts, if any, actually received by Parent or Sub under any insurance policy (net of any increased premiums resulting solely from receipt of such amounts by Parent or Sub). To the extent a claim is paid from the Escrow Fund to Parent, Parent will constitute and appoint, effective as of the Effective Time. No date of such payment, the Securityholder Agent on behalf of the Major Stockholder shall have any right as the true and lawful attorney of Parent with full power of substitution in the name of the Securityholder Agent or in the name of Parent, but for the benefit of Securityholder Agent, to contribution pursue third-party claims or collect amounts for the account of Securityholder Agent with respect to which a payment was made from the Company for any claim made by Parent after the Effective TimeEscrow Fund.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Company Stockholders will be deemed to have received and deposited 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 with respect to the Escrow Amount) without any act required on the party of any Company Stockholder. As soon as practicable after the Effective Time, Parent will deposit the Escrow Amount, without any act of any Stockholder, will be deposited Amount with U.S. Bank Trust, National Association (or other institution an escrow agent acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth hereinherein and at Parent's cost and expense. The portion of the Escrow Amount contributed on behalf of the Company Stockholders shall be in proportion to the aggregate Merger Consideration to which each such Company Stockholder would otherwise be entitled to receive pursuant to Section 1.6. The Escrow Amount shall be allocated in proportion to the number of Merger Shares and amount of Merger Cash payable at the Effective Time to each of the Company Stockholders. The Escrow Fund is available to compensate Parent and its officers, directors and affiliates, including the Surviving Corporation (each, an "INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED PARTIES") 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") paid, incurred, accrued or sustained by the Indemnified Parties, or any of them, directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained in Article II herein as of the date of this Agreement or as of the Closing Date, as though then made (except to the extent that such representation or warranty speaks as of an earlier date), (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, (iii) any Dissenting Share Payments, (iv) any claim made by any person that such person is or was entitled (by contract or otherwise) to receive any amount or property in such person's capacity (or asserted capacity) as a beneficiary of any rights in excess of the consideration set forth in this Agreement by virtue of or as a result of the Merger, other than any claim described in clause (iii) above and (v) the items listed on Schedule 7.2(a). Parent, Merger Sub and the Company 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. Nothing herein shall limit the liability of Parent, Merger Sub or the Company for any breach of any representation, warranty or covenant if the Merger does not close. For the purpose of this Article VII only, when determining the amount of any Loss resulting from such inaccuracy or breach, any such representation or warranty of the Company that is qualified in scope as to materiality (including Company Material Adverse Effect) shall be deemed to be made or given without such qualification. There shall be no right of contribution from any Indemnified Party with respect to any Loss. The Escrow Agent may execute this the Escrow Agreement following the date hereof and prior to the Effective TimeClosing, 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. The portion of the Escrow Amount contributed on behalf of each Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (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 in this Agreement, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any Stockholdershareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany shareholder, will be deposited with U.S. Bank Trust, National Association Trust NA (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.038.2(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. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder shareholder of Capital Stock Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a) and (b) and shall be in the respective share amounts and percentages listed opposite each such Company's shareholder's names listed in a schedule to be executed by the Company and delivered to Parent at Closing (the "Escrow Schedule"). All shares of Parent Common Stock contributed to the Escrow Fund shall not be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all 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 any certificate, instrument, schedule or document attached to this Agreement, Agreement and delivered by the Company in connection with the Merger) or (ii) any failure by the Company to perform or comply with any covenant contained herein other than, in the case of clauses (i) and (ii) above, any inaccuracy, breach or failure to perform or comply that is waived in writing by Parent; provided that claims arising out of an inaccuracy or breach of any representations and warranties and failure to perform or comply with any covenant of the Company contained in this AgreementAgreement and in any certificate, instrument, schedule or document delivered by the Company at the Closing in connection with this Agreement or the Merger must be asserted on or before 5:00 p.m. (California Time) on the Expiration Date. Provided, however, Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $250,000, have been delivered to the Escrow Agent as provided in paragraph (e) and such amount is determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses in excess of the $250,000 threshold for which there is no objection or any objection had been resolved in accordance with the provisions of this Article VIII; PROVIDED, HOWEVER, that to the extent third-party expenses, including, without limitation, legal and accounting fees incurred by the Company in connection with this Agreement and the Merger exceed $150,000 in the aggregate, such excess amount shall be deemed a Loss for purposes of Article VIII and shall be immediately reimbursable to Parent in accordance with this Article VIII (without regard to the $250,000 minimum threshold for Losses and without counting toward the $250,000 threshold); PROVIDED FURTHER, HOWEVER, that to the extent Parent incurs a Loss in connection with (A) the Company's failure to comply with U.S. Export Laws, or (iiiB) Section 4(d)(ii) of the Capella Agreement (including any action, suit Losses incurred in connection with the termination or proceeding which is pending or threatened against amendment of such section and regardless of whether Parent has waived under Section 7.3(b) hereof any failure of the Company as of to perform or comply with the Effective Time. No Stockholder covenant specified in Section 6.27 hereto), then any such Loss shall have any right be immediately reimbursable to contribution from Parent in accordance with this Article VIII (without regard to the Company $250,000 minimum threshold for any claim made by Parent after Losses and without counting toward the Effective Time$250,000 threshold).

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 Effective Time, Ventures' stockholders and by virtue of this Agreement, the Stockholders Warrant and Option holders will be deemed to have received and deposited the Escrow Shares with the Escrow Agent (as defined below) 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 with respect to the Escrow Amount) without any act of any Stockholderstockholder, Warrant holder or Option holder. As soon as practicable after At the Effective TimeClosing, the Escrow AmountShares, without any act of any Stockholderstockholder, Warrant holder or Option holder will be deposited with U.S. State Street Bank Trust, National Association and Trust Company (or other institution acceptable to Parent Purchaser and the Stockholder Representative (as defined in Section 8.03Representatives)) , as Escrow Agent (the "Escrow Agent"), such deposit for a period of one year from the Closing Date to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth hereinherein and in the Escrow Agreement. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold Parent compensate Purchaser and its officers, directors affiliates for any and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, liabilities, obligations, actions, claims, suits, proceedings, demands, assessments, judgments, recoveries, fees, costs and expenses (including, without limitation, all out-of-pocket expenses, including reasonable attorneys' investigation expenses and reasonable fees and expenses disbursements of investigation accountants and counsel) of any nature whatsoever, net of insurance proceeds actually realized or to be realized by Purchaser (hereinafter individually a "Loss" and collectively collectively, "Losses"), arising out of, based upon or resulting from (1) incurred by Parent, its officers, directorsany inaccuracy in or breach of any representation and warranty of Ventures which is contained in this Agreement or any Schedule or certificate delivered pursuant hereto or thereto; (2) any breach or non- fulfillment of, or affiliates any failure to perform, any of the covenants, agreements or undertakings of Ventures (including which covenants, agreements or undertakings were to be performed or complied with on or prior to the Surviving Corporationconsummation of the Merger) directly which are contained in or indirectly made pursuant to the terms and conditions of this agreement; (3) any losses of Purchaser or any Wired Company (whether or not disclosed on a Schedule hereto) to the extent arising out of the Wired Companies' obligations to provide indemnification in excess of the amount of the Advance Escrow pursuant to Section 10.3(b) of the Advance Agreement or otherwise resulting from or relating to the operation or sale of the Business (as a result such term is defined in the Advance Agreement); or (4) any Losses resulting from the delayed form filings described in paragraph (c) of Schedule 2.12. Purchaser may not receive any payment from the Escrow Fund unless and until Officer's Certificates (ias defined in the Escrow Agreement) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in the Escrow Agreement; in such case, Purchaser may recover from the Escrow Fund its Losses in excess of the first $500,000 (the "Deductible"); provided, however, that in no event shall the Deductible apply to the Losses resulting from any inaccuracy or breach of a any representation and warranty contained in Sections 2.1(b), 2.2, 2.14 or warranty 2.18, any Losses arising under clause (3) or (4) above, any fees and costs that Purchaser is entitled to recover pursuant to Section 10.1(c), or any negative Adjustment Amount determined pursuant to Section 10.1(d), and provided, further, that any such Losses or fees and costs or Adjustment Amount shall not be taken into account in determining whether aggregate Losses exceed the threshold of the Company contained in this Agreement, (ii) any failure by Deductible or whether the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as Deductible has been satisfied for purposes of the Effective Time. No Stockholder shall have any right to contribution calculating Purchaser's recovery from the Company for any claim made by Parent after the Effective TimeEscrow Fund.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any Stockholdershareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany shareholder, will be deposited with U.S. Chase Manhattan Bank Trustand Trust Company, National Association N.A. (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.038.2(h) below)) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder shareholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(b) and shall be in the respective share amounts and percentages listed opposite each Company's shareholder's names listed in a schedule to be executed by the Company and delivered to Parent at Closing (the "ESCROW SCHEDULE"). The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") 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 any certificate, instrument, schedule or document attached to this AgreementAgreement and delivered by the Company in connection with the Merger), (ii) any failure by the Company to perform or comply with any covenant or obligation contained in this Agreement, herein or (iii) any action, suit claims brought by employees or proceeding which is pending or threatened against consultants of the Company who were or are terminated prior to the Closing; provided that such claims must be asserted on or before 5:00 p.m. (California Time) on the Expiration Date. Except as of the Effective Time. No Stockholder shall have otherwise provided herein, Parent may not receive any right to contribution shares from the Company for Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $50,000 (except in the case of Losses arising from any claim made by Parent after breach or inaccuracy of Section 2.3, as to which such threshold shall not apply), have been delivered to the Effective Time.Escrow Agent as

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, the Stockholders Closing each Shareholder will be deemed to have received and deposited 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 with respect pursuant to the Escrow Amount) Agreement attached hereto as Exhibit C, without any act required on the part of any Stockholderthe Shareholders. As soon as practicable after the Effective TimeClosing, the Escrow Amount, without any act required on the part of any Stockholderthe Shareholders, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow Agent")into an interest-bearing account, such deposit to constitute an escrow fund (the "Escrow Fund") Fund to be governed by the terms set forth hereinherein and at NEON's cost and expense. The Shareholders shall bear the tax for all interest attributable to the Escrow Account. 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, Fund shall not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion be comprised entirely of the Escrow Amount contributed on behalf of each Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Amount. The Stockholders shall Escrow Fund is available to indemnify and hold Parent compensate NEON and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") for any Losses incurred by ParentNEON, 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 or covenant of the Company Shareholders, contained in this AgreementArticles II and III and VI herein, (ii) or any failure by the Company Shareholders to perform or comply with any covenant contained in this Agreement, or (iii) herein. NEON shall not be entitled to recover any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution amount from the Company for Escrow Fund until its Losses exceed $50,000 in the aggregate, at which time NEON may recover all of its Losses including the first $50,000; provided, however, that any claim made Losses incurred by Parent after NEON relating to any representation, warranty or covenant related to Taxes set forth in Sections 2.10 and 6.7 or to Section 2.3 or Article III hereof shall not be subject to such minimum amount. NEON and the Effective TimeShareholders each acknowledge that such Losses, if any, would relate to unasserted contingent liabilities existing at the Closing, which if resolved at the Closing would have led to a reduction in the aggregate Purchase Price.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other an institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(a). No portion of the Escrow Amount shall be contributed in respect of any Company Options or Warrants. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this AgreementArticle II herein (as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained herein; provided, however, that the Escrow Fund shall only be available to compensate Parent, its officers, directors or affiliates to the extent that the aggregate amount of Losses is in this Agreementexcess of $500,000, in which event the full amount of the Escrow Fund shall be available to so compensate Parent, its officers, directors or (iii) affiliates for any action, suit or proceeding which is pending or threatened against Losses. Parent and the Company as of each acknowledge that such Losses, if any, would relate to the 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. No Stockholder The Escrow Fund shall have any right be the sole source of damages to contribution Parent arising from the Company for any claim made by Parent after the Effective Time.hereunder (other than for

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Closing the Stockholders Shareholders receiving NEON Common Stock will be deemed to have received and deposited consented to the deposit with the Escrow Agent (as defined below) of the Escrow Amount Shares (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent NEON after the Effective Time with respect Closing) pursuant to the Escrow Amount) Agreement attached hereto as Exhibit B hereto, without any act required on the part of any StockholderShareholder. As soon as practicable after the Effective TimeClosing, the Escrow AmountShares, without any act required on the part of any StockholderShareholder, will be deposited with U.S. Bank Trust, National Association (or other institution an escrow agent acceptable to Parent NEON and the Stockholder Shareholder Representative (as defined in Section 8.03)7.2(h)(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. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at NEON's cost 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 heretoexpense. The portion of the Escrow Amount Fund contributed on behalf of each Stockholder Shareholder shall be as set forth in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Schedule 1.1. The Stockholders Escrow Fund shall indemnify and hold Parent be comprised entirely of the Escrow Shares. The Escrow Fund shall be available to compensate NEON and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 ParentNEON, 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 or the Shareholders, contained in this AgreementArticles II and III herein (as modified by the Company Disclosure Schedule), (ii) or any failure by the Company or the Shareholders to perform or comply with any covenant contained herein; provided that NEON shall not receive any shares from the Escrow Fund with respect to any individual Loss not exceeding $5,000 and shall not receive any shares from the Escrow Fund unless such Losses exceed $500,000 in this Agreementthe aggregate, or (iii) any action, suit or proceeding at which is pending or threatened against time NEON shall receive shares from the Escrow Fund for such first $500,000 in Losses and to the extent of such excess. NEON and the Company as each acknowledge that such Losses, if any, would relate to unasserted contingent liabilities existing at the Closing, which if resolved at the Closing would have led to a reduction in the aggregate Purchase Price. The foregoing limitations shall not apply to the obligations of the Effective Time. No Stockholder shall have any right Shareholders to contribution from pay the Company for any claim made by Parent after the Effective Timeincome taxes described in Section 5.6.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Ventures' stockholders will be deemed to have received and deposited the Escrow Shares with the Escrow Agent (as defined below) 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 with respect to the Escrow Amount) without any act of any Stockholderstockholder. As soon as practicable after At the Effective TimeClosing, the Escrow AmountShares, without any act of any Stockholderstockholder, will be deposited with U.S. State Street Bank Trust, National Association and Trust Company (or other institution acceptable to Parent Purchaser and the Stockholder Representative (as defined in Section 8.03Representatives)) , as Escrow Agent (the "Escrow Agent"), such deposit for a period of one year from the Closing Date to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth hereinherein and in the Escrow Agreement at Purchaser's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold Parent compensate Purchaser and its officers, directors affiliates for any and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, liabilities, obligations, actions, claims, suits, proceedings, demands, assessments, judgments, recoveries, fees, costs and expenses (including, without limitation, all out-of-pocket expenses, including reasonable attorneys' investigation expenses and reasonable fees and expenses disbursements of investigation accountants and counsel) of any nature whatsoever, net of insurance proceeds actually realized or to be realized by Purchaser (hereinafter individually a "Loss" and collectively collectively, "Losses") incurred by Parent), its officersarising out of, directors, based upon or affiliates resulting from (including the Surviving Corporation) directly or indirectly as a result of (i1) any inaccuracy in or breach of a any representation or and warranty of the Company Ventures which is contained in this Agreement, Agreement or any Schedule or certificate delivered pursuant hereto or thereto; (ii2) any breach or non-fulfillment of, or any failure by to perform, any of the Company covenants, agreements or undertakings of Ventures (which covenants, agreements or undertakings were to perform be performed or comply complied with any covenant on or prior to the consummation of the Merger) which are contained in or made pursuant to the terms and conditions of this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time.;

Escrow Fund. As security for provided in Section 1.8, promptly following the indemnity provided for in this Section 8.02 and by virtue of this Agreement, the 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 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 any Stockholder. As soon as practicable after the ----------- Effective Time, the Escrow Amount, without any act of any Stockholder, will be deposited Splash shall deposit with U.S. Comerica Bank Trust, National Association (or other another institution acceptable to Parent Splash and the Stockholder Representative Stockholders' Agent (as defined in Section 8.037.2(g) below)) ), as Escrow Agent (the "Escrow Agent"), such deposit to cash equaling the Escrow Amount, ------------ which 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 Effective Time, 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. The portion of the Escrow Amount contributed on behalf of each Major Company Stockholder shall correspond to such stockholder's Proportionate Escrow Interest. The Escrow Fund shall be in proportion available to compensate Splash and its subsidiaries (i) for the payment to Splash of any adjustments to the aggregate Parent Common Stock Merger Consideration pursuant to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify 1.13 of this Agreement and hold Parent and its officers(ii) for any claim, directors and affiliates (the "Indemnified Parties") harmless against all claimsloss, lossesexpense, liabilities, damages, deficiencies, costs and expensesliability or other damage, including reasonable attorneys' fees and expenses disbursements in connection with any action, suit or proceeding, to the extent of investigation the amount of such claim, loss, expense, liability or other damage (hereinafter individually a "Loss" and 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 Parentreason of (x) the breach by the Company of any representation, its officerswarranty, directorscovenant or agreement of the Company contained herein or (y) the breach by any of the Company Stockholders of any representation, warranty, covenant or affiliates agreement contained in such Company stockholder's Stockholders Agreement; provided, however, that (including 1) -------- ------- for purposes of determining whether a breach of any representation or warranty or covenant has occurred, and the Surviving Corporationamount of any losses attributable to any such breach, any qualification as to materiality set forth therein shall not be given effect to and (2) directly or indirectly claims for Losses incurred as a result of (i) any inaccuracy or a breach by a Company stockholder shall be satisfied out of a representation or warranty such stockholder's Proportionate Interest of the Company contained Escrow Fund until such Proportionate Escrow Interest is exhausted, and then shall be satisfied out of the Escrow Fund in accordance with this Agreement, (ii. Splash shall not be entitled to receive any disbursement with respect to any Loss under Section 7.2(a)(ii) any failure by the Company to perform or comply with any covenant contained arising in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time.respect of:

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Company's stockholders will be deemed to have received and deposited consented to the deposit of the Escrow Amount with the Escrow Agent (as defined below) upon payment of the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by 90th Day Parent after Obligation on the Effective Time with respect to the Escrow Amount) Second Payment Date without any act required on the part of any Stockholdersuch stockholders. As soon as practicable after Upon payment of the Effective Time90th Day Parent Obligation on the Second Payment Date, the Escrow Amount, without any act required on the part of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth hereinherein and at Parent's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The pro rata portion of the Escrow Amount contributed on behalf to which each stockholder of each Stockholder the Company shall be entitled upon distribution of the remaining Escrow Amount, if any, at the termination of the Escrow Period shall be in proportion to the aggregate Parent Common Stock Merger Consideration to which such holder would otherwise be entitled under Section 1.061.6 as set forth on Schedule 2.2. The Stockholders Escrow Amount shall indemnify be contributed entirely out a portion of the Secondary Merger Consideration issuable upon the Merger in respect of the Company Capital Stock; provided, however that in the case of Xxxxxxx Xxxxxxxx and hold Xxxxx Xxxxxxxx, 50% of each individual's contribution to the Escrow Amount shall be contributed from such holder's portion of the Holdback Amount and all references herein to deposits to or withdrawals from the Escrow Fund or relating to the Escrow Amount for such individuals shall include such amounts. The Escrow Fund is available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") 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 in this AgreementAgreement or in any certificate or instrument delivered pursuant to this Agreement , (ii) or any failure by the Company to perform or comply with any covenant contained herein. The Escrow Fund shall be the sole and exclusive remedy to compensate Parent, its officers, directors, or affiliates (including the Surviving Corporation) for any Losses, except in the case of fraud or intentional misrepresentation. The maximum amount of Losses for which each stockholder of the Company shall be liable is such stockholder's proportionate amount of the Escrow Fund based on the percentage of Merger Consideration received by such stockholder. In the event any payment pursuant to the indemnity obligations of the stockholders of the Company set forth in this AgreementAgreement is required to be made, or (iii) any action, suit or proceeding which is pending or threatened against the Company as each stockholder will satisfy such payment by forfeiture of its proportionate share of the Effective TimeEscrow Fund. No Stockholder Parent shall not be entitled to receive any amounts from the Escrow Fund unless and until Parent shall have delivered an Officer's Certificate (as defined in Section 6.2(d)) identifying the Losses. Notwithstanding anything to the contrary, neither Parent or any of its affiliates shall have any right to contribution compensation from the Company for Escrow Fund unless and until the aggregate Losses exceed an aggregate of Five Thousand Dollars ($5,000) (the "DEDUCTIBLE"), in which event Parent shall be entitled to compensation from the Escrow Fund only to the extent to which the amount of Losses exceed $5,000 (and not the initial $5,000 of Losses), provided, however, that any claim made by Losses incurred in connection with the Company's use of commercial software in a production environment that has not been appropriately licensed shall not be subject to the Deductible and Parent after shall be entitled to recovery of any and all such Losses up to the Effective Timeamount of the Escrow Fund without regard to the Deductible.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Company Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any StockholderCompany Shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany Shareholder, will be deposited with U.S. Bank Trust, National Association N.A. (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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 hereinherein and at Parent's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this Agreement(as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company as of 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. No Stockholder shall have Parent may not receive any right to contribution shares from the Company Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) -44- 49 below) identifying Losses, the aggregate amount of which exceed $250,000, have been delivered to the Escrow Agent as provided in paragraph (e); provided that no claim for any claim made Losses with respect to a single breach or failure to comply or perform in an amount less than $10,000 shall be delivered by Parent after to the Effective TimeEscrow Agent or otherwise claimed by Parent. Once the aggregate amount of Losses claimed by Parent against the Escrow as to which there are no unresolved objections under Section 7.2(e) exceeds $250,000, Parent may recover from the Escrow Fund the total of such Losses.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Company's stockholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount Shares (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 the Escrow AmountTime) without any act on the part of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow AmountShares, without any act on the part of any StockholderCompany stockholder, will be deposited with U.S. State Street Bank Trust, National Association & Trust Company (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.038.2(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 hereinin the Escrow Agreement. The number of 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed Shares deposited on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a) and (b) and shall be in the respective share amounts and percentages listed opposite each Company stockholder's name listed in a schedule in form and substance reasonably acceptable to Parent to be executed by the Company and delivered to Parent at Closing (the "Escrow Schedule"). No shares of Parent Common Stock deposited in the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Company or the Surviving Corporation. The Stockholders Escrow Fund shall indemnify and hold be available to reimburse Parent and its officers, directors and affiliates Affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all 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, agents or affiliates Affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy in, or breach of of, a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement, Agreement and delivered by the Company in connection with the Merger) or (ii) any failure by the Company to perform or comply with any covenant contained herein; provided that claims arising out of an inaccuracy in, or breach of, any representations and warranties or any covenant of the Company contained in this Agreement and in any certificate, instrument, schedule or document delivered by the Company at the Closing in connection with this Agreement or the Merger must be asserted on or before 5:00 p.m. (Delaware Time) on the Expiration Date. Losses otherwise subject to reimbursement from the Escrow Fund shall be reduced by the amount that Parent or its Affiliates recover as proceeds of insurance in respect of such Losses, net of any cost of collection, deductible, retroactive premium adjustment, reimbursement obligation or other cost directly related to the insurance claim in respect of such Losses. Parent agrees that it will prosecute, and cause its Affiliates to prosecute, claims against its or their respective insurers diligently and in good faith if, in Parent's reasonable judgment, it or an Affiliate has a claim against an insurer for such Losses. Except as otherwise provided herein, Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in the Escrow Agreement) identifying Losses, the aggregate amount of which exceed $250,000, have been delivered to the Escrow Agent as provided in the Escrow Agreement and such amount is determined pursuant to the Escrow Agreement to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (including any Losses within the $250,000 threshold) for which there is no objection or any objection had been resolved in accordance with the provisions of the Escrow Agreement; and provided, however, that any Losses incurred by Parent as a result of any inaccuracy in, or breach of, Sections 2.3, 2.10, 2.14, 2.15, 2.25 and 2.30 hereof shall be immediately reimbursable to Parent in accordance with this Article VIII (iii) any action, suit or proceeding which is pending or threatened against without regard to the Company as of $250,000 minimum threshold for Losses and without counting toward the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time$250,000 threshold).

Escrow Fund. As security for the indemnity provided for in this Section 8.02 7.2 and by virtue of this Agreement, 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of 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 TrustD.L. Xxxxxxx Xxxrow Company, National Association Inc. (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)Company Stockholders) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Company Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(a). The Company and the Company Stockholders shall jointly agree to indemnify and hold Parent and its officers, directors and affiliates (the "Indemnified PartiesINDEMNIFIED PARTIES") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (hereinafter individually a "LossLOSS" and collectively "LossesLOSSES") 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 in this Agreement, or (ii) any failure by the Company to perform or comply with any covenant contained in this AgreementAgreement or any failure by Jonaxxxx Xxxxx xx Waynx Xxxxxxxx xx comply with the provisions of Section 5.17 herein; provided, or however, that (iiiexcept for indemnification obligations due to any breach of the Extended Representations and Warranties for which there is no limitation) any action, suit or proceeding the aggregate amount for which is pending or threatened against the Company as and the Company Stockholders are required to indemnify the Indemnified Parties shall not exceed the amount held by the Escrow Agent in the Escrow Fund; and provided, further, that (except for indemnification obligations due to any breach of the Effective TimeExtended Representations and Warranties) the sole recourse of the Indemnified Parties for indemnification obligations of the Company and the Company Stockholders shall be to make claims upon the Escrow Fund pursuant to Section 7.2(d) hereof. No Stockholder The Escrow Fund shall be available to compensate Parent and its affiliates for any such Losses. The Company Stockholders shall not have any right to of contribution from the Company for with respect to any claim made Loss claimed by Parent after the Effective Time. Nothing herein shall limit the liability of the Company for any breach of any representation, warranty or covenant if the Merger does not close for reasons other than Parent's breach of its obligations hereunder; but the Company Stockholders shall not be personally liable therefor. Parent may not receive any shares from the Escrow Fund unless and until an Officer's Certificate (as defined in paragraph (d) below) identifying Losses has been delivered to the Escrow Agent as provided in paragraph (d) below.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of 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 N.A. (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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 hereinherein and at Parent's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this Agreement(as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company 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. Nothing herein shall limit the liability of the Company for any breach of any representation, warranty or covenant if the Merger does not close. Other than as provided in Section 5.16, the Company stockholders shall not have any right of contribution from the Company with respect to any Loss claimed by Parent or its affiliates after the Effective Time. No Stockholder shall have Parent may not receive any right to contribution shares from the Company Escrow Fund unless and until Escrow Claim Certificate (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $100,000, have been delivered to the Escrow Agent as provided in paragraph (e); provided, no claim for any claim made Losses with respect to a single breach or failure to comply or perform in an amount less than $15,000 shall be delivered by Parent after to the Effective TimeEscrow Agent or otherwise claimed by Parent. Once the aggregate amount of Losses claimed by Parent against the Escrow as to which there are no unresolved objections under Section 7.2(e) exceeds $100,000, Parent may recover from the Escrow Fund the total of such Losses.

Escrow Fund. As security for the indemnity provided for in this Section 8.02 8.2 hereof and by virtue of this Agreement, (i) the Stockholders of the Company will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional of which the stock certificate representing shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to comprising part of the Escrow Amount) without any act Amount shall be deposited in the name of any Stockholderthe Escrow Agent defined below). As soon as practicable after At or promptly following the Effective Time, the Escrow Amount, without any act of any Stockholderstockholder of the Company, will be deposited with U.S. Bank TrustFirst Trust of California, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)Company) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit deposits to constitute an escrow fund (the "Escrow FundESCROW 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount to be contributed on behalf of each Stockholder shall be in proportion its Pro Rata Portion of the Escrow Amount. The Company shall provide the Escrow Agent and Parent with a schedule which lists, by stockholder, the portion of the Escrow Amount deemed to be contributed by each stockholder consistent with the preceding sentence. Each Stockholder shall be entitled to all voting rights with respect to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06held in escrow on its behalf. The Company and the Stockholders shall agree that the Escrow Fund will be available to jointly and severally indemnify and hold Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, shortfalls, costs and expenses, including reasonable internal and third party attorneys', accountants' and other fees and expenses of investigation and defense (hereinafter individually a "LossGENERAL LOSS" and collectively "LossesGENERAL 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 in this Agreement, (ii) any failure by the Company or any Principal Stockholder to perform or comply with any covenant contained in this Agreement, or (iii) any actionand all Taxes (including, suit or proceeding which is pending or threatened against the Company as without limitation, additional Taxes resulting from disallowed deductions under Section 404 of the Effective Time. No Stockholder shall have Code), losses, liabilities, claims, damages, obligations, payments, costs and expenses including, without limitation, reasonable attorneys' fees, arising out of or relating in any right manner to contribution from the Company for establishment, administration or termination of any claim made by Parent after Benefit Plan on or prior to the Effective Time.Closing Date, including, without limitation, loss of any deduction due to the disqualification of any such Benefit Plan, (iv) any audit of or other legal proceeding

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Principal 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of any Principal 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 Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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 hereinherein and at Parent's cost and expense. The Escrow Agent may execute this Agreement following the date hereof and prior Subject to the Effective Time, and such later execution, if so executed after the date hereof, shall not affect the binding nature provisions of this Agreement as of the date hereof between the other signatories hereto. The portion of Section 7.2, the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all for any 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 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 in this Agreement, and the Principal Stockholders (iias modified by the Company Schedules) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company as of 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 change in the Exchange Ratio. No Stockholder Nothing herein shall have any right to contribution from limit the Company liability of the Company, the Principal Stockholders or Parent for any claim made by Parent after breach of any representation, warranty or covenant if the Effective TimeMerger does not close.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Company's stockholders will be deemed to have received from Merger Sub and deposited with the Escrow Agent (as defined below) the Escrow Amount Shares (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 the Escrow AmountTime) without any act on the part of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow AmountShares, without any act on the part of any StockholderCompany stockholder, will be deposited with U.S. First Union National Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth hereinherein and in the Escrow Agreement. The number of 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed Shares deposited on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a) and (b) and shall be in the respective share amounts and percentages listed opposite each Company stockholder's name listed in a schedule in form and substance reasonably acceptable to Parent to be executed by the Company and delivered to Parent at Closing (the "ESCROW SCHEDULE"). No shares of Parent Common Stock deposited in the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Company or the Surviving Corporation. The Stockholders Escrow Fund shall indemnify and hold be available to reimburse Parent and its officers, directors and affiliates Affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") incurred by Parent, its officers, directors, agents or affiliates Affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy in, or breach of of, a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement, Agreement and delivered by the Company in connection with the Merger) or (ii) any failure by the Company to perform or comply with any covenant contained herein; provided that claims arising out of an inaccuracy in, or breach of, any representations and warranties or any covenant of the Company contained in this AgreementAgreement and in any certificate, instrument, schedule or (iii) any action, suit or proceeding which is pending or threatened against document delivered by the Company at the Closing in connection with this Agreement or the Merger must be asserted on or before 5:00 p.m. (California Time) on the Expiration Date. Parent shall provide notice to the Securityholder Agent (as defined below) within 30 days of Parent becoming aware of any claims for Losses if such claims are reasonably identifiable and determinable; PROVIDED, HOWEVER, that no delay or failure on the part of Parent in notifying the Securityholder Agent shall relieve the Securityholder Agent or the stockholders of the Effective TimeCompany on whose behalf the Escrow Amount was contributed from any obligation unless they are materially prejudiced thereby (and then only to the extent of such prejudice). No Stockholder shall have Except as otherwise provided herein, Parent may not receive any right to contribution shares from the Company Escrow Fund unless and until Officer's Certificates (as defined in the Escrow Agreement) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in the Escrow Agreement and such amount is determined pursuant to the Escrow Agreement to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (including any Losses within the $500,000 threshold) for which there is no objection or any claim made by Parent after objection had been resolved in accordance with the Effective Timeprovisions of the Escrow Agreement; PROVIDED, HOWEVER, that to the extent the aggregate premiums for the Company's Directors' and Officers' Liability insurance policy exceed $40,000, such excess shall be deemed a Loss for purposes of this Section 8.2(a) and the Escrow Agreement.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's shareholders will be deemed to have received and deposited 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 with respect Time) pursuant to the Escrow Amount) Agreement attached hereto as Exhibit H, without any act required on the part of any Stockholdershareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act required on the part of any Stockholdershareholder, will be deposited with U.S. Bank Trust, National Association (or other institution an escrow agent acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.03)7.2(h)(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. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder shareholder of the Company shall be in proportion to the aggregate Parent Common Stock to Shares which such holder would otherwise be entitled under Section 1.061.6(a). The Stockholders Escrow Amount shall indemnify and hold be contributed entirely out of the shares of Parent Common Shares issuable upon the Merger in respect of Company Common Stock. The Escrow Fund shall be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this AgreementArticle II herein (as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreementherein; provided, or (iii) any actionhowever, suit or proceeding which is pending or threatened against that the Escrow Fund shall not be available after the date of the first audit of financial statements containing combined operations of Parent and the Company as of for those contingencies that would be expected to be encountered in the audit process. Parent and the Company each acknowledge that such Losses, if any, would relate to unasserted contingent liabilities existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger consideration. No Stockholder Subject to Section 8.5 below, nothing herein shall have any right to contribution from limit the liability of the Company for any claim made by breach of any representation, warranty or covenant if the Merger does not close. Parent after may not receive any shares from the Effective TimeEscrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $300,000, have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent may recover from the Escrow Fund its Losses in excess of the first $300,000.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other an institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) Securityholder Agent as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a), (b) and (c). No portion of the Escrow Amount shall be contributed in respect of any Company Options or warrants. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all for any claims, losses, liabilities, damages, deficiencies, reasonable costs and expenses, including reasonable attorneys' fees and expenses, and reasonable expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") defense 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 in this AgreementArticle II herein (as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this AgreementSections 4.1(a) to 4.1(w) or the first clause of Section 4.1(x) herein (hereinafter individually a "LOSS" and collectively "LOSSES"); provided, however, that the Escrow Fund shall only be available to compensate Parent, its officers, directors or (iii) affiliates to extent that the aggregate amount of Losses is in excess of $150,000, in which event the full amount of the Escrow Fund shall be available to so compensate Parent for any action, suit or proceeding which is pending or threatened against Losses. Parent and the Company as of 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. No Stockholder The Escrow Fund shall have be the sole source of damages to Parent arising from any right claim hereunder (other than for damages due to contribution from fraud or willful misrepresentation). Nothing herein shall limit the liability of the Company for any claim made by Parent after breach of any representation, warranty or covenant if the Effective TimeMerger does not close.

Escrow Fund. As security for the indemnity provided for in this Section 8.02 and by virtue of this Agreement, the 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 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 any Stockholder. As soon as practicable after the Effective Time, 600,000 shares of Aspec Common Stock which comprise the Escrow Amount, without any act of any StockholderInbox Shareholder, will be deposited with U.S. Bank Trust, National Association an escrow agent selected by Aspec (or other institution which shall be reasonably acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)Inbox) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior at a cost and expense to the Effective Time, 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 heretobe borne by Aspec. The portion of the Escrow Amount contributed on behalf of each Stockholder holder of Inbox Common Stock shall be in proportion to the aggregate Parent Common Stock to Merger Consideration which such holder would otherwise be entitled under Section 1.063.1. The Stockholders Escrow Agent shall indemnify and hold Parent not be responsible for confirming that the shares contributed to the Escrow Fund comprise the Escrow Amount or that the portion contributed on behalf of each holder of Inbox Common Stock is in the proper proportion, which determination shall be made by Aspec. The Escrow Fund shall be available to compensate Aspec and its officersAffiliates for any and all actions, directors and affiliates (the "Indemnified Parties") harmless against all suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes, liens, losses, liabilitiesexpenses, damagesand fees, deficiencies, including court costs and expenses, including reasonable attorneys' fees and expenses of investigation (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 in this Agreement, (ii) any failure by the Company to perform or comply connection with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending to the extent of the amount of such actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses or threatened against fees (collectively "LOSSES") that Aspec or any of its Affiliates has incurred by reason of the Company as breach by Inbox or the Majority Shareholders of any representation, warranty, covenant or agreement of Inbox or the Majority Shareholders contained herein, or by reason of any misrepresentation by Inbox or the Majority Shareholders made herein. Aspec, Inbox and the Majority Shareholders 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. No Stockholder Resort to the Escrow Fund shall have be the exclusive remedy of Aspec and its Affiliates against Inbox or any right to contribution from of its directors, officers, representatives, agents or shareholders or the Company Majority Shareholders for any such breaches and misrepresentations if the Merger does close. Notwithstanding the foregoing, for any claim made by Parent after based upon actual fraud brought during the period twelve (12) months from the Effective Time, Aspec and its Affiliates shall have recourse severally against Inbox or any of its directors, officers, representatives, agents or shareholders or the Majority Shareholders, respectively, in an amount up to the aggregate consideration received by each such individual in the Merger; provided, however, that to the extent Losses exceed such amount, Aspec will be entitled to proceed against the individual assets of Anmix Xxxxx, Xxhn Xxxx xx Charxxx X. Xxxxx, xxspectively, but only to the extent that such actual fraud was committed by such individual, and then only to the extent of the assets of the individual. In addition, notwithstanding the foregoing and except for amounts recoverable pursuant to Section 3.2, Aspec may not receive any Escrow Amounts from the Escrow Fund 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 Escrow Agent as provided in paragraph (e). In such case Aspec may recover from the Escrow Fund the total of its Losses including the first 75,000 provided that Aspec shall use its reasonable efforts to mitigate its Losses hereunder.

Escrow Fund. As security for the indemnity provided for in this Section 8.02 7.2 and by virtue of this Agreement, 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of 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 Trust (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)Company Stockholders) 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 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Company Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(a). The Company and the Company Stockholders shall jointly agree to indemnify and hold Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (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 in this Agreement, or (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement; provided, or (iii) any actionhowever, suit or proceeding that, except as set forth in Section 7.4, the aggregate amount for which is pending or threatened against the Company as of Stockholders are required to indemnify the Effective TimeIndemnified Parties shall not exceed the amount deposited in the Escrow Fund. No Stockholder The Escrow Fund shall be available to compensate Parent and its affiliates for any such Losses. The Company Stockholders shall not have any right to of contribution from the Company for with respect to any claim made Loss claimed by Parent after the Effective Time. Nothing herein shall limit the liability of the Company for any breach of any representation, warranty or covenant if the Merger does not close for reasons other than Parent's breach of its obligations hereunder; but the Company Stockholders shall not be personally liable therefor. Parent may not receive any shares from the Escrow Fund unless and until an Officer's Certificate (as defined in paragraph (d) below) identifying Losses has been delivered to the Escrow Agent as provided in paragraph (d) below.

Escrow Fund. As security for Agreement") with an escrow agent selected by Parent and reasonably acceptable to --------- the indemnity provided for Stockholders' Representative (the "Escrow Agent") substantially in this Section 8.02 and by virtue the form ------------ of this Exhibit C hereto. Pursuant to the terms of the Escrow Agreement, at the Stockholders -------- Closing, Parent shall deposit one or more certificates representing, in the aggregate, the Escrow Shares otherwise issuable into an escrow account, which account is to be managed by the Escrow Agent (the "Escrow Account"). In -------------- connection with such deposit of the Escrow Shares with the Escrow Agreement and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent (as defined below) each stockholder's pro rata interest in the Escrow Amount Shares as determined as of the Closing by reference to such stockholder's ownership of shares of Common Stock (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 Amount) without any act of any Stockholder. As soon as practicable after the Effective Time, the Escrow AmountAccount), without any act of any Stockholder, will stockholder. Distributions of any Escrow Shares from the Escrow Account shall be deposited with U.S. Bank Trust, National Association governed by the terms and conditions of the Escrow Agreement (or other institution acceptable any Escrow Shares in the Escrow Account being referred to Parent and the Stockholder Representative (as defined in Section 8.03)) 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 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 not affect the binding nature adoption of this Agreement as and the ----------- approval of the date hereof between Merger by the other signatories heretoCompany Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including without limitation the placement of the Escrow Shares in escrow and the appointment of the Stockholders' Representative. The No portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be contributed in proportion respect of any Company Options or any warrant or other security exercisable or convertible into Company Common Stock. No Parent Shares contributed to the aggregate Parent Common Stock Escrow Fund shall be unvested or subject to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold Parent and its officersany right of repurchase, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses risk of investigation (hereinafter individually a "Loss" and collectively "Losses") incurred by Parent, its officers, directors, forfeiture or affiliates (including other condition in favor of the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained in this Agreement, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of any Stockholderstockholder. As soon as practicable after the Effective TimeTime but within five (5) days thereafter, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other an institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.038.2(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. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6. Any shares of Parent Common Stock contributed to the Escrow Fund shall (to the extent feasible at the Effective Time) not be subject to any right of repurchase in favor of the Surviving Corporation. No portion of the Escrow Amount shall be contributed in respect of any Company Options. The Stockholders Escrow Fund shall indemnify and hold be available to compensate the Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") defense incurred by Parent, its officers, directors, 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 any certificate, instrument, schedule or document delivered by the Company in connection with this AgreementAgreement or the Merger, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreementherein, (iii) the infringement by the business of the Company as currently conducted or by any of the Company Intellectual Property Rights on any proprietary right of any third party, or (iiiiv) for any actionuntrue statement of a material fact or omission to state any material fact necessary in order to make the statements, suit in the light of the circumstances under which made, not misleading in any documents 49 mailed, delivered or proceeding which is pending or threatened against otherwise furnished to the stockholders of the Company in connection with soliciting their consent to this Agreement and the Merger, to the extent prepared by the Company (hereinafter individually a "Loss" and collectively "Losses"). Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $50,000, have been delivered to the Effective TimeEscrow Agent as provided in paragraph (d) and either there is no objection thereto or any objection has been resolved in accordance with the provisions of this Article VIII; in such case, Parent may recover from the Escrow Fund any Losses so identified in accordance with the provisions of this Section 8.2. No Stockholder The Escrow Fund shall have be the sole source of damages to Parent arising from any right claim hereunder (other than for damages due to contribution from fraud or willful misrepresentation). The limitation in the immediately preceding sentence shall not limit the liability of the Company for any claim made by Parent after breach of any representation, warranty or covenant if the Effective TimeMerger does not close.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 Effective Time, each holder of shares of Company Capital Stock (each, a "COMPANY STOCKHOLDER" and by virtue of this Agreementcollectively, the Stockholders "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 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 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, Trust National Association (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(g) below)) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, be maintained at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Company Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(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 Fund may be unvested or subject to any right of repurchase, risk of forfeiture, or other condition in favor 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 Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") 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 any certificate, instrument, schedule or document delivered by the Company in connection with this Agreement, Agreement or the Merger) or (ii) any failure by the Company to perform or comply with 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 Company contained in this AgreementAgreement or in any certificate, instrument, schedule or (iii) any action, suit or proceeding which is pending or threatened against document delivered by the Company as at the Closing in connection with this Agreement or the Merger must be asserted on or before 5:00 p.m. (California Time) on the date that is one year following the Closing Date (the "EXPIRATION DATE"). No portion of the Effective TimeEscrow Amount shall be contributed in respect of any Company Options. No Stockholder shall have Except for Excess Third Party Expenses (as defined in Section 9.2), Parent may not receive any right to contribution shares from the Company Escrow Fund 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 Escrow Agent as provided in paragraph (d), and either there is no objection thereto or any objection has been resolved in accordance with the provisions of this Article VII; in such case, Parent may recover from the Escrow Fund all Losses, without regard to the $150,000 threshold, for which there is no objection or any claim made by Parent after objection has been resolved in accordance with the Effective Timeprovisions of this Article VII.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Participating Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount shares of ClickOver Common Stock and ClickOver Preferred Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent ClickOver after the Effective Time with respect to the Escrow AmountTime) without any act of any StockholderParticipating Shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderParticipating Shareholder, will be deposited with U.S. Bank Trust, National Association (or other an institution acceptable to Parent ClickOver and the Stockholder Representative (as defined in Section 8.03)) Focalink Securityholder Agent 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 Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at ClickOver's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder Participating Shareholder shall be in proportion to the aggregate Parent ClickOver Common Stock to and ClickOver Preferred Stock which such holder would otherwise be entitled to receive under Section 1.061.6. The Stockholders No portion of the Escrow Amount shall indemnify and hold Parent and its officersbe contributed in respect of any Focalink Warrants. Subject to the limits of Section 7.2(g) below, directors and affiliates (the "Indemnified Parties") harmless against all Escrow Fund shall be available to compensate ClickOver 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 ParentClickOver, 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 Focalink contained in this AgreementArticle II herein (as modified by the Focalink Schedules), (ii) or any failure by the Company Focalink to perform or comply with any covenant contained in this Agreementherein. ClickOver and Focalink each acknowledge that such Losses, or (iii) any actionif any, suit or proceeding which is pending or threatened against would relate to the Company as of unresolved contingencies existing at the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after , which, if resolved at the Effective TimeTime would have led to a reduction in the aggregate Merger consideration.

Escrow Fund. As security for of the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Company's stockholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount 200,000 shares of Parent Common Stock (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 the Time)(the "Escrow Amount") without any act of any Stockholderstockholder. As soon as practicable Within ten (10) days after the Effective TimeClosing Date, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other an institution acceptable to Parent and the Stockholder Representative (Securityholder Agent as defined in Section 8.03)) as Escrow Agent 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 Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled to receive under Section 1.061.7. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this AgreementArticle II herein (as modified by the Company Schedules), (ii) any failure by the Company to perform or comply with any covenant contained in this Agreementherein, or (iii) any actionTaxes owing by the Company, suit whether before or proceeding which is pending or threatened against after the Closing, as a result of the activities of the Company as prior to the Closing, or (iv) any claim by any holder of Company Capital Stock or by any holder of any Assumed Option or the holder of the Effective TimeGMC Warrant that it did not receive the portion of the Merger Consideration to which it was entitled, (such excluded liabilities and obligations, the "Assumed Liabilities"). No Stockholder Notwithstanding the foregoing (i) the Parent shall have any right to contribution from not assert a claim for a Loss hereunder of less than Ten Thousand Dollars ($10,000), individually, and until the aggregate of such claims exceeds One Hundred Thousand Dollars ($100,000). Nothing herein shall limit the liability of the Company for any claim made by Parent such breach of any representation, warranty or covenant if the Merger does not close. As soon as practicable after all claims specified in any officer's Certificate delivered to the Escrow Agent prior to termination of the Escrow Period have been resolved and after the Effective Timetermination of the Escrow Period, the Escrow Agent shall deliver to the stockholders of the Company the remaining portion of the Escrow Fund not required to satisfy such claims. Deliveries of Escrow Amounts to the stockholders of the Company pursuant to this Section 7.2(a) shall be made based on their interest in such Escrow Amounts as of the date of distribution from the Escrow Fund as certified by the Securityholder Agent in an Agent Certificate delivered to Parent and the Escrow Agent no later than fifteen (15) days prior to the date of the distribution from the Escrow Fund. The Escrow Agent shall not be obligated to deliver any Escrow Amounts to the stockholders of the Company pursuant to this Section 7.2(a) unless and until the Securityholder Agent shall have delivered an Agent Certificate to Parent and the Escrow Agent with respect to such Escrow Amounts as required by this Section 7.2(a).

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's stockholders will be deemed to have received and deposited 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 with respect to the Escrow Amount) Time), without any act required on the part of any Stockholderstockholder. As soon as practicable after the Effective Time, the General Escrow AmountAmount and the Special Escrow Amounts (collectively, the "ESCROW AMOUNT") without any act required on the part of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other institution an escrow agent acceptable to Parent and the Stockholder Representative Agent (as defined in Section 8.03)7.2(g)(i) below) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a)(i). The Stockholders Escrow Amount shall indemnify be contributed entirely out of the shares of Parent Common Stock issuable upon the Merger in respect of Capital Common Stock, and hold no portion of the Escrow Amount shall be contributed out of the shares of Parent Common Stock reserved for issuance in respect of Company Options. That portion of the Escrow Fund comprised of the General Escrow Amount is available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and out-of-pocket expenses of investigation (hereinafter individually a "LossLOSS" and collectively "LossesLOSSES") 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 in this AgreementArticle II herein, (ii) or any failure by the Company to perform or comply with any covenant contained herein. That portion of the Escrow Fund comprised of the Special Escrow Amount I is available as an Offset as provided in this AgreementSection 1.6(g)(viii) hereof. That portion of the Escrow Fund comprised of the Special Escrow Amount II is available to compensate Parent and its affiliates from any Losses incurred by Parent, its officers, directors or affiliates (including the Surviving Corporation) directly or indirectly as a result of any claims of current or former stockholders of the Company or former stockholders of Orcim Acquisition Corp. ("ORCIM") that are due to, arise out of or otherwise relate to the merger between the Company and Orcim which became effective November 15, 1993, or the rights of the stockholders in connection therewith (herein "ORCIM CLAIMS"). Parent and the Company each acknowledge that such Losses, if any, would relate to unasserted contingent liabilities existing at the 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 shares from the Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $250,000 have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent may recover from the Escrow Fund its Losses, including the first $250,000. The foregoing limitations shall not apply to (i) any Offset under Section 1.6(g)(viii), (ii) any Orcim Claims or (iii) any action, suit claim for indemnification arising from a breach of any representation or proceeding which is pending or threatened against warranty set forth in Section 2.8 (relating to Taxes) and Parent shall not be limited to the Company as of amount in the Effective Time. No Stockholder shall have any right Escrow Fund to contribution from the Company compensate for any claim made by Parent after the Effective Timesuch Losses.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Principal Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any StockholderPrincipal Shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderPrincipal Shareholder, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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 hereinherein and at Parent’s cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this Agreement(as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company as of 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. No Stockholder Losses shall have be satisfied first against shares of Parent Common Stock that are not subject to a right of repurchase or similar right granted pursuant to a Stock Restriction Agreement or otherwise, and then satisfied against shares of Parent Common Stock that are not subject to any right to contribution from such right. Nothing herein shall limit the liability of the Company for any claim made by Parent after breach of any representation, warranty or covenant if the Effective Time.Merger does not close. (b)

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow AmountTime) without any act of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, First Trust of California National Association Global Escrow D.S., (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(g) below)) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(a). No portion of the Escrow Amount shall be contributed in respect of any Company Options or warrants. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") 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 or any contained in this AgreementArticle II herein (as modified by the Company Schedules), (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company as of 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. No Stockholder Subject to Section 8.3 below, nothing herein shall have any right to contribution from limit the liability of the Company for any claim made by breach of any representation, warranty or covenant if the Merger does not close. Parent after may not receive any shares from the Effective TimeEscrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent may recover from the Escrow Fund its Losses in excess of the first $500,000.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders holders of Consideration Common, to the extent set forth in Section 1.10, shares will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow Agent")by Parent, such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth hereinherein (and in the Escrow Agreement) and at Parent's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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, agents, employees, stockholders 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 in this Agreement, herein (as modified by the Company Disclosure Schedule) and (ii) any failure by the Company to perform or comply with any covenant contained herein. Any shares remaining in the Escrow Fund after the final determination of any unsatisfied Losses existing at the end of the Escrow Period shall be returned to the holders. Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 7.2(d) below) identifying Losses have been delivered to the Escrow Agent as provided in Section 7.2(e), and all other procedures in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder Article VII shall have any right to contribution from the Company for any claim made by Parent after the Effective Timebeen followed.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, the Stockholders Closing each Shareholder will be deemed to have received and deposited 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 with respect pursuant to the Escrow Amount) Agreement attached hereto as Exhibit C, without any act required on the part of any Stockholderthe Shareholders. As soon as practicable after the Effective TimeClosing, the Escrow Amount, without any act required on the part of any Stockholderthe Shareholders, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow Agent")into an interest-bearing account, such deposit to constitute an escrow fund (the "Escrow Fund") Fund to be governed by the terms set forth hereinherein and at NEON's cost and expense. The Shareholders shall bear the tax for all interest attributable to the Escrow Account. 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, Fund shall not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion be comprised entirely of the Escrow Amount contributed on behalf of each Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Amount. The Stockholders shall Escrow Fund is available to indemnify and hold Parent compensate NEON and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") for any Losses incurred by ParentNEON, 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 or covenant of the Company Shareholders, contained in this AgreementArticles II and III and VI herein, (ii) or any failure by the Company Shareholders to perform or comply with any covenant contained in this Agreement, or (iii) herein. NEON shall not be entitled to recover any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution amount from the Company for Escrow Fund until its Losses exceed $100,000 in the aggregate, at which time NEON may recover all of its Losses including the first $100,000, provided, however, that any claim made Losses incurred by Parent after NEON relating to any representation, warranty or covenant related to Taxes set forth in Sections 2.10 and 6.7 or to Section 2.3 or Article III hereof shall not be subject to such minimum amount. NEON and the Effective TimeShareholders each acknowledge that such Losses, if any, would relate to unasserted contingent liabilities existing at the Closing, which if resolved at the Closing would have led to a reduction in the aggregate Purchase Price.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Company Stockholders will be deemed to have received and deposited 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 with respect to the Escrow Amount) without any act required on the party of any Company Stockholder. As soon as practicable after the Effective Time, Parent will deposit the Escrow Amount, without any act of any Stockholder, will be deposited Amount with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Company Stockholder entitled to receive Merger Shares or Merger Cash shall be in proportion determined with reference to the aggregate Parent Common Stock to which Pro Rata Portion of each such holder would otherwise be entitled under Section 1.06Company Stockholder. The Stockholders shall indemnify and hold Escrow Fund is available to compensate Parent and its officers, directors and affiliates affiliates, including the Surviving Corporation (each, an "INDEMNIFIED PARTY" and collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") incurred paid, incurred, accrued or sustained by Parent, its officers, directorsthe Indemnified Parties, or affiliates (including the Surviving Corporation) any of them, directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained in Article II herein as of the date of this AgreementAgreement or as of the Closing Date, as though then made (except to the extent that such representation or warranty speaks as of an earlier date), (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, Agreement or (iii) any action, suit claim made by any person that such person is or proceeding which is pending was entitled (by contract or threatened against otherwise) to receive any amount or property in such person's capacity (or asserted capacity) as a holder of equity interests in the Company or contingent equity interests or as a beneficiary of any rights in excess of the consideration set forth in this Agreement by virtue of or as a result of the Merger; provided, however, that there shall be no liability under this Section 7.2 unless the aggregate of all Losses exceeds One Hundred Thousand Dollars ($100,000) (the "AGGREGATE THRESHOLD"); provided, further, however, that in the event the entire amount of any Losses accrued exceeds the Aggregate Threshold, such entire amount may be recovered from the Escrow Fund. Parent, Merger Sub and the Company 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 Value. No Stockholder Nothing herein shall have any right to contribution from limit the liability of the Company for any claim made by Parent after breach of any representation, warranty or covenant if the Effective TimeMerger does not close.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Street Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent Street after the Effective Time with respect to the Escrow AmountTime) without any act of any StockholderStreet Shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderStreet Shareholder, will be deposited with U.S. Bank Trust, National Association N.A., (or other institution acceptable to Parent Street and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Street Shareholder shall be in proportion to the aggregate Parent Select Common Stock to and/or Select Series H Preferred Stock, as the case may be, which such holder would otherwise be entitled under Section 1.061.6(b). The Stockholders Escrow Fund shall indemnify and hold Parent be available to compensate Select and its officers, directors and affiliates (the "Indemnified Parties") harmless against all for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses and expenses of investigation and defense, net of any benefits or proceeds of insurance (hereinafter individually a "Loss" and collectively "Losses") incurred by ParentSelect, 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 Street contained in this AgreementArticle 2 herein (as modified by Street Schedules), (ii) or any failure by the Company Street to perform or comply with any covenant contained in this Agreementherein. Select and Street each acknowledge that such Losses, or (iii) any actionif any, suit or proceeding which is pending or threatened against the Company as of 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. No Stockholder Nothing herein shall have limit the liability of Street for any right breach of any representation, warranty or covenant if the Merger does not close. Resort to contribution the Escrow Fund shall be the exclusive contractual remedy of Select for any breach by Street of any representation or warranty if the Merger does close; provided, however, that nothing herein shall limit any remedy for fraud. Select may not receive any shares from the Company for any claim made by Parent after Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the Effective Timeaggregate amount of which exceed $100,000, have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Select may recover from the Escrow Fund the total of its Losses, in excess of $100,000.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's stockholders will be deemed to have received and deposited 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 with respect to the Escrow Amount) Time), without any act required on the part of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act required on the part of any Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other institution an escrow agent acceptable to Parent and the Stockholder Representative Agent (as defined in Section 8.03)7.2(g)(i) below) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a) and 1.6(b). The Stockholders Escrow Amount shall indemnify be contributed entirely out of the shares of Parent Common Stock issuable upon the Merger in respect of Capital Common Stock, and hold no portion of the Escrow Amount shall be contributed out of the shares of Parent Common Stock reserved for issuance in respect of Company Options. The Escrow Fund is available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 "LossLOSS" and collectively "LossesLOSSES") 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 in this AgreementArticle II herein, (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company as of each acknowledge that such Losses, if any, would relate to unassented contingent liabilities existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger consideration. No Stockholder shall have Parent may not receive any right to contribution shares from the Company for any claim made by Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $100,000 have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent after may recover from the Effective TimeEscrow Fund its Losses, including the first $100,000.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 Effective Time the holders of Series B Preferred Stock and by virtue of this Agreement, the Stockholders Series D Preferred Stock will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any Stockholdershareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholderholder, will be deposited with U.S. Bank TrustThe Pacific Bank, National Association 000 Xxxxxxxxxx Xxxxxx, San Francisco, California 94104 (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.038.2(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. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder shareholder of Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.9(a) and (b) and shall be in the respective share amounts and percentages listed opposite each such Company's shareholder's names listed in a schedule to be executed by the Company and -43- delivered to Parent at Closing (the "Escrow Schedule"). All shares of Parent Common Stock contributed to the Escrow Fund shall not be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all 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 of: (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement, Agreement and delivered by the Company in connection with the Merger) of the shareholders of the Company made in any instrument executed by the shareholders in connection with the transactions contemplated hereby; (ii) any failure by the Company or its shareholders to perform or comply with any covenant contained herein or in this Agreement, any agreement or instrument contemplated hereby; and (iii) any actionlegal or other fees and expenses, suit interest, fees or proceeding penalties related thereto. Parent may not receive any shares from the Escrow Fund, however, unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $50,000, have been delivered to the Escrow Agent as provided in paragraph (e) and such amount is pending or threatened against determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Company as Escrow Fund equal in value to all indemnified Losses in excess of the Effective Time. No Stockholder shall have $50,000 threshold for which there is no objection or any right to contribution from objection had been resolved in accordance with the Company for any claim made by Parent after the Effective Timeprovisions of this Article VIII.

Escrow Fund. As security for the indemnity provided for in this Section 8.02 and by virtue of this Agreement8.2 hereof, the 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 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 any Stockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholder, will Escrowed Consideration shall be deposited by Acquiror in an escrow account with U.S. The Chase Manhattan Bank Trust, National Association (or other institution mutually acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)institution) as Escrow Agent (the "Escrow Agent"), as of the Effective Time, such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth hereinin this Agreement and the provisions of an Escrow Agreement to be executed and delivered pursuant to Section 5.16. The Escrow Agent may execute Fund shall be allocated among the Principal Stockholders on a pro-rata basis in accordance with the number of shares of Target Common Stock held by the Principal Stockholders at the Effective Time (excluding for purposes of this Agreement following calculation any Dissenting Shares). Upon compliance with the date terms hereof and prior subject to the Effective Timeprovisions of this Article VIII, Acquiror and such later executionthe Surviving Corporation shall be entitled to obtain indemnity from the Escrow Fund for Damages covered by the indemnity provided for in Section 8.2 of this Agreement. Any and all distributions of stock or any securities of Acquiror issued in respect thereof (including, if so executed after without limitation, any shares issued pursuant to any stock dividend, stock split, reverse stock split, combination or reclassification thereof) shall be the date hereofproperty of the Principal Stockholders, shall not affect be deposited with the binding nature Escrow Agent and shall be treated as Escrowed Consideration pursuant to the terms of this Agreement as Agreement. Cash dividends or other property distributed in respect of Acquiror Common Stock shall be delivered to the date hereof between Principal Stockholders on a pro-rata basis in accordance with the other signatories heretonumber of shares of Target Common Stock held by the Principal Stockholders at the Effective Time and shall not be deposited with or retained by the Escrow Agent. The portion of Principal Stockholders shall be entitled to exercise any and all voting and other consensual rights pertaining to the Acquiror Common Stock held in the Escrow Amount contributed on behalf of each Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold Parent and its officers, directors and affiliates Fund (the "Indemnified PartiesEscrow Shares") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses or any part thereof for any purpose not inconsistent with the terms of investigation (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 in this Agreement, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective Time.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's stockholders will be deemed to have received and deposited 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 with respect to the Escrow Amount) Time), without any act required on the part of any Stockholderstockholder 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 Stockholderstockholder, will be deposited with U.S. Bank Trust, National Association (or other institution an escrow agent acceptable to Parent and the Stockholder Representative Agent (as defined in Section 8.03)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. The herein and in the Escrow Agent may execute this Agreement following the date hereof and prior to the Effective Time, at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(a) and 1.6(b). The Stockholders Escrow Amount shall indemnify and hold be contributed entirely out of the shares of Parent Common Stock issuable upon the Merger in respect of Company Common Stock. The Escrow Fund is available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained in this AgreementArticle II herein, (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreementherein, or (iii) for any action, suit Losses suffered by Parent or proceeding which is pending or threatened against the Company as a result of the Effective Time. No Stockholder shall have any right failure by Administaff to contribution from provide the Benefit Services or the improper provision of the Benefit Services as a result of which Parent or the Company for any claim made by Parent after is subject to liability to the Effective TimeCompany's employees or a governmental agency.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue Effective Time, each shareholder of this Agreementthe Company (individually, a "Company Shareholder" and, collectively, the Stockholders "Company Shareholders") will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend dividend, or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Amount) without any act of any StockholderCompany Shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany Shareholder, will be deposited with U.S. Chase Manhattan Bank Trustand Trust Company, National Association (Association, or a trust company or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, be maintained at Parent's cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder Company Shareholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(b) and shall be in the respective amounts listed opposite each Company Shareholder's name listed in Exhibit G attached hereto. Any shares of Parent Common contributed to the Escrow Fund shall not be unvested or subject to any right of repurchase, risk of forfeiture, or other condition in favor of the Surviving Corporation or Parent. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all for any claims, losses, liabilities, damages, deficiencies, costs costs, and expenses, including reasonable attorneys' fees and expenses and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") defense 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 (as modified by the Company Schedules) or in this Agreementthe certificates, (iidelivered pursuant to Sections 9.3(b) and 9.3(c), or any failure by the Company prior to the Closing to perform or comply with any covenant (except as Parent may have expressly waived in writing) contained in this Agreementherein (hereinafter individually a "Loss" and collectively "Losses"), provided that claims for any Losses must be asserted on or before 5:00 p.m. (California Time) on the earlier to occur of (i) the date that is one year following the Closing Date or (iiiii) any action, suit or proceeding which is pending or threatened against the Company as date of the Effective Timeissuance by Parent's independent accountants of its first audit report relating to Parent's financial statements which would include an audit of the combined operations of Parent and the Company. Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 7.2(d)(i) below) identifying Losses, the aggregate amount of which exceed $50,000, have been delivered to the Escrow Agent as provided in paragraph (d) and either there is no objection thereto or any objection has been resolved in accordance with the provisions of this Article VII; in such case, Parent may recover from the Escrow Fund all Losses in excess of $50,000 threshold for which there is no objection or any objection has been resolved in accordance with the provisions of this Article VII. No Stockholder portion of the Escrow Amount shall have be contributed in respect of any right to contribution from the Company for any claim made by Parent after the Effective TimeOptions.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 Effective Time, each holder of shares of Company Capital Stock (each, a “Company Stockholder” and by virtue of this Agreementcollectively, the Stockholders “Company Stockholders”) will be deemed to have received and deposited with the Escrow Agent (as defined below) each Company Stockholder’s pro rata interest in the Escrow Amount as set forth in the Final Conversion Schedule (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 Amount) ), without any act of 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 Stockholder Representative Securityholder Agent (as defined in Section 8.037.3(g) below)) as Escrow Agent (the "Escrow “Escro w Agent"”), such deposit to constitute an escrow fund (the "“Escrow Fund"”) to be governed by the terms set forth herein. The Escrow Agent may execute in this Agreement following the date hereof Section and prior to the Effective Time, be maintained at Parent’s cost 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Company Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.6(b) and shall be in the respective amounts listed opposite each Company Stockholder’s name listed on the Final Conversion Schedule and executed by the Company and delivered to Parent at Closing. The Stockholders In the case of a Company Stockholder holding both (a) shares of Company Capital Stock subject to vesting, whether through a right or repurchase, forfeiture or other condition, and (b) vested shares of Company Capital Stock, the shares to be contributed to the Escrow Fund on behalf of such Company Stockholder shall indemnify be allocated among vested and hold unvested shares in proportion to the ratio that the to tal number of vested shares held by such Company Stockholder bears to the total number of unvested shares held by such Company Stockholder. No portion of the Escrow Amount shall be contributed in respect of any Company Options or any warrant exercisable for Company Capital Stock. Upon compliance with the terms hereof and subject to the provisions of this Article VII, Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (hereinafter individually a "Loss" and collectively "Losses") incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly Corporation shall be entitled to obtain indemnity from the Escrow Fund for Losses covered by the indemnity provided for in Section 7.2. All taxable income accrued or indirectly earned in respect of the Escrow Amount shall be treated as a result of (i) any inaccuracy or breach of a representation or warranty the income of the Company contained in this Agreement, (ii) any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company Stockholders for any claim made by Parent after the Effective Timeall Tax purposes.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective, Time the Stockholders 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 be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time which amount shall include New Shares in accordance with respect to the Escrow AmountSection 8.2(c)(ii)) without any act of any Stockholderstockholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany stockholder, will be deposited with U.S. Chase Manhattan Bank Trustand Trust Company, National Association N.A. (or other institution acceptable to Parent and the Stockholder Representative (as defined in Section 8.03)Securityholder Agent) 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 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder stockholder of the Company shall be in proportion to the aggregate Parent Common Stock to and portion of the Aggregate Cash Component which such holder would otherwise be entitled under Section 1.061.6(a) and shall be in the respective share amounts and percentages listed opposite each Company stockholder's names listed in a schedule to be executed by the Company and delivered to Parent at Closing (the "Escrow Schedule"). The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (exclusive of any punitive damages asserted solely by Parent or its affiliates and not related to any Third-Party Claim) (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 any certificate, instrument, schedule or document attached to this Agreement, Agreement and delivered by the Company in connection with the Merger) or (ii) any failure by the Company to perform or comply with any covenant or obligation contained in this Agreement, herein or (iii) Advisors Fees not otherwise accounted for at the Closing under Section 6.20(a) or (iv) any actionadjustment under Section 6.20(d)(i); provided that such claims must be asserted on or before 5:00 p.m. (California Time) on the Expiration Date. Except as otherwise provided herein, suit Parent may not receive any shares, cash or proceeding property from the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $100,000 (except in the case of Losses arising from fraud, from Advisor Fees not otherwise accounted for at the Closing under Section 6.20(a) or under 6.20(d)(i), as to each of which such threshold shall not apply), have been delivered to the Escrow Agent as provided in paragraph (f) and such amount is pending determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (including any Losses within the $100,000 threshold) for which there is no objection or threatened against any objection had been resolved in favor of Parent, its affiliates or the Surviving Corporation in accordance with the provisions of this Article VIII. For purposes of this Article VIII, the phrases "Company stockholders" and "stockholders of the Company" shall refer to the stockholders of the Company as of the Effective Time. No Stockholder shall have any right immediately prior to contribution from the Company for any claim made by Parent after the Effective Time.

Escrow Fund. As security for the indemnity provided for in this Section 8.02 and by virtue of this Agreement, the 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 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 any Stockholder. As soon as practicable after At the Effective Time, the Escrow Amount, without any act of any Stockholder, Parent will be deposited deposit the Escrow Amount into an escrow account with U.S. Bank TrustXxxxx Fargo Bank, National Association (Association, or such other institution escrow agent as may be reasonably acceptable to Parent and the Company or the Stockholder Representative (as defined in Section 8.03)) as Escrow Agent (the "“Escrow Agent"”), such deposit to establish and constitute an escrow fund (the "Escrow Fund") to . The Escrow Fund shall be governed by the terms set forth hereinin this Section 7.2 and the Escrow Agreement in substantially the form of Exhibit I and shall be maintained at Parent’s and the Stockholders’ cost and expense, such cost to be borne one-half by Parent and one-half by the Stockholders. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The cash portion of the Escrow Amount contributed on behalf of each Stockholder shall be in proportion deposited into an interest bearing account and any interest earned thereon interest shall be added to the aggregate Escrow Fund and available to cover Losses of Parent and its affiliates hereunder. Any distributions on the shares of Parent Common Stock other than regular cash dividends shall be held by the Escrow Agent and shall be deemed attached to the shares of Parent Common Stock to which they pertain. For applicable income tax purposes, any shares of Parent Common Stock or securities distributed in respect thereof shall be treated as owned by, and any dividends, interest or other income earned on the Escrow Fund shall be treated as income of, the Stockholder on whose behalf such holder would otherwise be entitled under Section 1.06securities or assets giving rise to such interest or other income, as the case may be, are being held. The Stockholders shall indemnify and hold not have the right to sell, transfer, pledge, hypothecate or otherwise dispose of any cash or securities held in the Escrow Fund or any interest therein for so long as they are held in the Escrow Fund. Each Stockholder shall be entitled to vote the shares of Parent and its officersCommon Stock held in the Escrow Fund for so long as they are held by the Escrow Agent, directors and affiliates (pro rata based on the "Indemnified Parties") harmless against all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation (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 value of the Company contained shares of Parent Common Stock deposited in this Agreementthe Escrow Fund on behalf of such Stockholder. For purposes of determining the value of any shares of Parent Common Stock included in the Escrow Fund, (ii) any failure by each such share shall be deemed to have a value equal to the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against the Company as of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by Parent after the Effective TimeAverage Closing Price.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue Effective Time holders of this Agreement, the Stockholders Company Capital ----------- Stock (other than holders of Dissenting Shares) will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any Stockholdershareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Stockholdershareholder, will be deposited with U.S. Bank TrustFirst Trust of California, National Association (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.037.2(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. The Escrow Agent may execute this Agreement following the date hereof herein and prior to the Effective Time, at Parent's cost ------------ 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 heretoexpense. The portion of the Escrow Amount contributed on behalf of each Stockholder shareholder of the Company shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.061.7(a). No portion of the Escrow Amount shall be contributed in respect of any Company Options. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 including any contained in this Agreement, Article II herein (ii) any failure as modified by the Company Schedules). Subject to perform or comply with any covenant contained in this AgreementSection 8.2 below, or (iii) any action, suit or proceeding which is pending or threatened against nothing herein shall limit the Company as liability of the Effective Time. No Stockholder shall have any right to contribution from the Company for any claim made by breach of any representation, warranty or covenant if the Merger does not close. Parent after may not receive any shares from the Effective TimeEscrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $60,000, have been delivered to the Escrow Agent as provided in paragraph (e); in such case, Parent may recover from the Escrow Fund the amount of its Losses which exceed $60,000.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this AgreementEffective Time, the Stockholders Company Shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any StockholderCompany Shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany Shareholder, will be deposited with U.S. Bank Trust, National Association N.A. (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.03)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 hereinherein and at Parent's cost and expense. 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder Fund shall be in proportion available to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.06. The Stockholders shall indemnify and hold compensate Parent and its officers, directors and affiliates (the "Indemnified Parties") harmless against all 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 in this Agreement(as modified by the Company Schedules) , (ii) or any failure by the Company to perform or comply with any covenant contained in this Agreement, or (iii) any action, suit or proceeding which is pending or threatened against herein. Parent and the Company 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. Nothing herein shall limit the liability of the Company for any breach of any representation, warranty or covenant if the Merger does not close. Other than as provided in Section 5.16, the Company shareholders shall not have any right of contribution from the Company with respect to any Loss claimed by Parent or its affiliates after the Effective Time. No Stockholder shall have Parent may not receive any right to contribution shares from the Company Escrow Fund unless and until Escrow Claim Certificate (as defined in paragraph (d) below) identifying Losses, the aggregate amount of which exceed $50,000, have been delivered to the Escrow Agent as provided in paragraph (e) ; provided, no claim for any claim made Losses with respect to a single breach or failure to comply or perform in an amount less than $5,000 shall be delivered by Parent after to the Effective TimeEscrow Agent or otherwise claimed by Parent. Once the aggregate amount of Losses claimed by Parent against the Escrow as to which there are no unresolved objections under Section 7.2(e) exceeds $50,000, Parent may recover from the Escrow Fund the total of such Losses.

Escrow Fund. As security for At the indemnity provided for in this Section 8.02 and by virtue of this Agreement, Effective Time the Stockholders Company's shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) 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 with respect to the Escrow AmountTime) without any act of any Stockholdershareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any StockholderCompany shareholder, will be deposited with U.S. Chase Manhattan Bank Trustand Trust Company, National Association N.A. (or other institution acceptable to Parent and the Stockholder Representative Securityholder Agent (as defined in Section 8.038.2(h) below)) as Escrow Agent (the "Escrow AgentESCROW AGENT"), such deposit to constitute an escrow fund (the "Escrow FundESCROW 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 not affect the binding nature of this Agreement as of the date hereof between the other signatories hereto. The portion of the Escrow Amount contributed on behalf of each Stockholder shareholder of the Company shall be in proportion to the aggregate Parent Common Stock and Parent Preferred Stock to which such holder would otherwise be entitled under Section 1.06Sections 1.6(c), (d) and (e) and shall be in the respective share amounts and percentages listed opposite each Company's shareholder's names listed in a schedule to be executed by the Company and delivered to Parent at Closing (the "ESCROW SCHEDULE"). All shares of Parent Common Stock and Parent Preferred Stock contributed to the Escrow Fund shall be vested and not subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation. The Stockholders Escrow Fund shall indemnify and hold be available to compensate Parent and its officers, directors and affiliates (including the "Indemnified Parties"Surviving Corporation) harmless against all for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense, as well as adjustments relating to Execution Net Book Value pursuant to Section 1.6(b) (hereinafter individually a "LossLOSS" and collectively "LossesLOSSES") 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 any certificate, instrument, schedule or document attached to this AgreementAgreement and delivered by the Company in connection with the Merger), or (ii) any failure by the Company to perform or comply with any covenant or obligation contained herein; provided that such claims must be asserted on or before 5:00 p.m. (California Time) on the Expiration Date. Except as otherwise provided herein, Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $500,000 (except in the case of Losses arising from any breach or inaccuracy of Section 2.3, as to which such threshold shall not apply), have been delivered to the Escrow Agent as provided in paragraph (f) and such amount is determined pursuant to this AgreementArticle VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (including any Losses within the $500,000 threshold) for which there is no objection or (iii) any actionobjection had been resolved in accordance with the provisions of this Article VIII; provided, suit or proceeding which is pending or threatened against however, that to the extent third-party expenses, including, without limitation, legal and accounting fees incurred by the Company as in connection with this Agreement and the Merger exceed $50,000 in the aggregate, such excess shall be deemed a Loss for purposes of Article VIII and shall be immediately reimbursable to Parent in accordance with this Article VIII (without regard to the $500,000 minimum threshold for Losses and without counting toward the $500,000 threshold). For purposes of this Article VIII, the phrases "Company shareholders" and "shareholders of the Effective Time. No Stockholder Company" shall have any right refer to contribution from the shareholders of the Company for any claim made by Parent after immediately prior to the Effective Time.