Common use of Indemnification Escrow Clause in Contracts

Indemnification Escrow. As security for the payment of an Indemnification Obligation of the Sellers arising pursuant to an Indemnification Claim, the Sellers authorize the Buyer to hold and deliver as Escrow Agent the Escrowed Shares pursuant to the Escrow Agreement in the form of Exhibit A attached hereto. The Buyer is authorized to (i) withdraw from the Seller's portion of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following the Closing Date, the Buyer as Escrow Agent shall deliver to each Seller such Seller's Portion of the Escrowed Shares and Escrowed Funds which based on the Escrow Share Indemnification Value as of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims of the Buyer as of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, shall be delivered to the Buyer or the Sellers within five business days following the final determination as to the Indemnification Claims outstanding. To the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery of the Escrowed Shares and Escrowed Funds, the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)

Indemnification Escrow. As security for Notwithstanding the payment foregoing provisions of an Indemnification Obligation of the Sellers arising pursuant to an Indemnification Claim, the Sellers authorize the Buyer to hold and deliver as Escrow Agent the Escrowed Shares pursuant this Article I to the Escrow Agreement in the form of Exhibit A attached hereto. The Buyer is authorized to (i) withdraw from the Seller's portion of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellerscontrary, on a date which is the corresponding date in the twelfth month following the Closing Date, the Buyer as Escrow Agent shall deliver to each Seller such Seller's Stock Portion of the Escrowed Shares and Escrowed Funds which based on Merger Consideration (the “Indemnification Escrow Share Indemnification Value as of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims of the Buyer as of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, Amount”) shall be delivered by Acquiror to the Buyer Escrow Agent, to be held in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of an escrow agreement (the “Indemnification Escrow Agreement”) to be entered into by and among Acquiror, the Holder Representative and the Escrow Agent in a form to be agreed upon between the date hereof and the Closing Date by Acquiror, the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable to the Acquiror pursuant to Section 1.5(d) hereof but only to the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the balance of the Indemnification Escrow Amount (less the aggregate amount of all claims for indemnification asserted in writing by the Purchaser Indemnitees prior to the Escrow Termination Date pursuant to Article XIII hereof to the extent not paid or satisfied prior to the Sellers within five business days following Escrow Termination Date) to the final determination as holders of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to the Indemnification Claims outstanding. To the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery of the Escrowed Shares and Escrowed Funds, the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)Escrow Agreement.

Indemnification Escrow. As security for the payment of an Indemnification Obligation of the Sellers arising pursuant to an Indemnification Claim, the Sellers authorize the Buyer to hold and deliver as Escrow Agent the Escrowed Shares pursuant to the Escrow Agreement in the form of Exhibit A attached hereto. The Buyer is authorized to (i) withdraw from the Seller's portion of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following On or before the Closing Date, the Buyer as Parties and the Escrow Agent shall deliver enter into the Indemnification Escrow Agreement, in form and substance acceptable to each Seller such Seller's Portion of the Escrowed Shares parties thereto, governing the terms and Escrowed Funds which based conditions of an escrow to be established by the Parties to fund the payment of, or to reimburse Purchaser for the payment of, any Losses that are covered by Seller’s indemnification obligations under Article IX and Article X of this Agreement (the “Indemnification Escrow”). The Indemnification Escrow shall commence with the deposit of the General Holdback and the Tax Holdback that are withheld from the payment of the Purchase Price at the Closing. The Tax Holdback within the Indemnification Escrow shall expire upon the Company Audit Completion and the General Holdback within the Indemnification Escrow shall expire upon the twelve (12) month anniversary date of the Closing Date, in each case whereupon all remaining, undisputed funds held in escrow with respect to the applicable holdback will be released to Seller. Purchaser and Seller agree that for Tax purposes Purchaser will include in gross income all interest income on the Indemnification Escrow Share Indemnification Value as of such from the date funds are not reserved deposited in escrow until paid to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims Sellers. Purchaser shall be entitled to withdraw the Tax payments equal to 40% of the Buyer as taxable income from the Indemnification Escrow. Any funds paid from the Indemnification Escrow to Seller upon expiration of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, shall be delivered the Indemnification Escrow will include interest income accrued to the Buyer or fund, less the Sellers within five business days following Taxes thereon paid by Purchaser. Purchaser and Seller agree that for Tax purposes the final determination as to funds in the Indemnification Claims outstanding. To the extent an Indemnification Obligation Escrow will remain property of a Seller can Purchaser and will not be satisfied treated as Seller’s property until paid by the delivery of the Escrowed Shares and Escrowed Funds, the Seller agrees Escrow Agent to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)Seller.

Indemnification Escrow. As security On the Closing Date, Buyer, Seller and Wachovia Bank, N.A. the ("Escrow Agent") shall execute a Post-Closing Escrow Agreement substantially in the form attached as Exhibit C (the "Post-Closing Escrow Agreement") in accordance with which, on the Closing Date, Buyer shall deposit Two Million Dollars ($2,000,000) of the Purchase Price with the Escrow Agent (such deposit and all amounts held from time to time by the Escrow Agent in respect of such deposit, including any interest or other earnings in respect of such deposit, the "Indemnification Funds") in order to provide a fund for the payment of an Indemnification Obligation of the Sellers arising pursuant any claims for which Buyer is entitled to an Indemnification Claim, the Sellers authorize the Buyer to hold and deliver indemnification as Escrow Agent the Escrowed Shares pursuant to the Escrow Agreement provided in the form of Exhibit A attached heretothis Article 11. The Buyer is authorized to (i) withdraw from Indemnification Funds shall be held and disbursed in accordance with the Seller's portion terms -40- 47 of this Agreement and the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from Post-Closing Escrow Agreement. On the Seller's portion first business day following the one year anniversary of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following the Closing Date, any Indemnification Funds not then subject to indemnification claims of Buyer under this Agreement shall be released by the Buyer as Escrow Agent shall deliver to each Seller such Seller's Portion . If at any time before the one year anniversary of the Escrowed Shares Closing Date, Seller sells, transfers or otherwise transfers all or substantially all of its assets, Seller shall cause Six Million Dollars ($6,000,000) to be deposited with and Escrowed Funds which based held by Union Bank of California in a segregated account that will not be available to satisfy any obligations or liabilities of the Seller other than obligations to Buyer pursuant to this Article 11, and Seller shall provide Buyer with prompt reasonable evidence that such deposit has been made in accordance with the foregoing. Seller shall cause the entire $6,000,000 to be so held in such account until the one year anniversary of the Closing Date. If on the Escrow Share Indemnification Value as one year anniversary of the Closing Date there are any outstanding claims for indemnification by Buyer against Seller under this Article 11 and the stated amount of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims claims exceeds the amount of the Buyer as Indemnification Funds then remaining and being held by the Escrow Agent, Seller shall cause the amount of such datedeficiency to continue to be so held in such account by Union Bank of California until such time as the one or more claims giving rise to such deficiency are resolved and Buyer has been paid any amounts to which it may be entitled in connection therewith, and Seller may cause any amounts so held by Union Bank of California in excess of such deficiency to be released to Seller. The Escrowed Shares and Escrowed Funds so reservedSo long as Seller is required to hold any monies in such account pursuant to this Section 11.5, if any, Seller shall be delivered to the provide Buyer or the Sellers within five business days following the final determination as to the Indemnification Claims outstanding. To the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery with prompt reasonable evidence of the Escrowed Shares and Escrowed Funds, the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)amounts held in such account upon Buyer's request.

Indemnification Escrow. As security for the payment of an Indemnification Obligation of the Sellers arising pursuant to an Indemnification Claim, the Sellers authorize the Buyer to hold and deliver as (a) The Escrow Agent the Escrowed Shares pursuant to the Escrow Agreement in the form of Exhibit A attached hereto. The Buyer is authorized to (i) withdraw from the Seller's portion of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following the Closing Date, the Buyer as Escrow Agent shall deliver to each Seller such Seller's Portion of the Escrowed Shares and Escrowed Funds which based on the Escrow Share Indemnification Value as of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims of the Buyer as of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, shall will be delivered to the Buyer Escrow Agent in accordance with the terms of Section 2 to be held and released in accordance with the Escrow Agreement as security of the indemnification obligations of the Securityholders under this Section 8 hereof. The Escrow Agreement will provide, among other things, that any portion of the Escrow Shares not previously released to Acquiror, or retained by Escrow Agent, as a result of an indemnification claim by Acquiror shall be released to the Sellers Securityholders on the Escrow Termination Date in accordance with the terms of the Escrow Agreement; provided, however, that if there remain any unsatisfied claims specified in any Officer’s Certificate delivered by Acquiror to the Securityholders’ Agent in accordance with Section 8.4 and prior to the Escrow Termination Date with respect to facts and circumstances existing prior to the Escrow Termination Date, a portion of the Escrow Shares shall be retained by the Escrow Agent in accordance with the terms of the Escrow Agreement until such claims have been resolved (whether by agreement of the parties or as a result of any final decision, judgment or award). The portion of the Escrow Shares to be retained shall be based on the aggregate value of the unsatisfied claims as of the Escrow Termination Date, which value shall be determined upon the mutual agreement of the parties, and if no such agreement can be reached within five business 15 days following the final determination as to Escrow Termination Date, the Indemnification Claims outstanding. To Independent Accounting Firm shall determine the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery value of the Escrowed Shares unsatisfied claims, or, if the Independent Accounting Firm refuses to make such determination, then such dispute shall be resolved in accordance with Section 8.6 of this Agreement. For purposes of this Section 8, Securityholders that receive Stock Merger Consideration shall be entitled to use shares of Acquiror Common Stock issued as Stock Merger Consideration to satisfy Damages that are due and Escrowed Funds, payable to an Acquiror Indemnified Person and any such shares of Acquiror Common Stock shall be valued at ***. *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)Commission.

Indemnification Escrow. As security for At the payment Effective Time, Buyer shall withhold from the Closing Consideration otherwise payable in connection with the Merger an amount of an cash equal to the Indemnification Obligation Escrow Amount. Prior to or simultaneously with the Effective Time, the Equity Holders’ Representative and Buyer shall enter into the Indemnification Escrow Agreement with the Escrow Agent in mutually acceptable form (the “Indemnification Escrow Agreement”). On the Closing Date and prior to the filing of the Sellers arising pursuant Plan of Merger and the Articles of Merger, Buyer shall deposit the Indemnification Escrow Amount in the Indemnification Escrow Account to an Indemnification Claim, be managed by the Sellers authorize the Buyer to hold and deliver as Escrow Agent the Escrowed Shares pursuant to the terms of the Indemnification Escrow Agreement. Distributions of any cash from the Indemnification Escrow Amount shall be governed by the terms and conditions of this Agreement and the Indemnification Escrow Agreement (the cash in the form of Exhibit A attached heretoIndemnification Escrow Account at any given time, including all accrued interest, being referred to as the “Escrowed Remainder”). The Buyer is authorized Indemnification Escrow Amount shall be withheld from each Equity Holder based on such Person’s Percentage Ownership. Upon the expiration of the Survival Period, the Escrowed Remainder, less any claims pending under Article 8, shall be paid to (i) withdraw from the Seller's portion Equity Holders in accordance with such Equity Holder’s Percentage Ownership of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following the Closing Date, the Buyer as Escrow Agent shall deliver to each Seller such Seller's Portion of the Escrowed Shares and Escrowed Funds which based on the Escrow Share Indemnification Value as of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims of the Buyer as of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, shall be delivered to the Buyer or the Sellers within five business days following the final determination as to the Indemnification Claims outstanding. To the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery of the Escrowed Shares and Escrowed Funds, the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)Remainder.

Indemnification Escrow. As security for At the payment Closing, each of Buyer, Buyer Sub and the Sellers’ Representative are executing and delivering an escrow agreement in substantially the form attached hereto as Exhibit I (the “Indemnification Obligation Escrow Agreement”). At the Closing, Buyer Sub is depositing with the Escrow Agent a portion of the Sellers arising pursuant Cash Consideration otherwise payable to an Indemnification Claim, the Sellers authorize and Cashed-Out Holders at the Buyer Closing equal to hold the aggregate of the amounts set forth opposite the Sellers and deliver as Cashed-Out Holders’ names on Schedule IV hereto, for a total of $5,000,000 (the “Indemnification Escrow”). The Indemnification Escrow shall be held by the Escrow Agent the Escrowed Shares pursuant to the Escrow Agreement in the form of Exhibit A attached hereto. The Buyer is authorized to (i) withdraw from the Seller's portion terms of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Indemnification Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the SellerAgreement. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following the Closing Date, the Buyer as Escrow Agent shall deliver to each Seller such Seller's Portion of the Escrowed Shares and Escrowed Funds which based on the Escrow Share Indemnification Value as of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims of the Buyer as of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, shall be delivered to the Buyer or the Sellers within five business days following the final determination as Pursuant to the Indemnification Claims outstandingEscrow Agreement, the full amount of the Indemnification Escrow shall be released by the Escrow Agent to the Sellers’ Representative on the six-month anniversary of the Closing Date (the “Release Date”), in accordance with the terms of the Indemnification Escrow Agreement, minus any amounts of any indemnity claims made pursuant to Article VIII (whether or not such indemnity claims have been determined to be valid) as of the Release Date. To At such time as all remaining claims have been resolved, any remaining amounts in the Indemnification Escrow shall be released and paid to the Sellers’ Representative. Any funds distributed from the Indemnification Escrow to the Sellers Representative shall be distributed upon release by the Sellers’ Representative to the Sellers and Cashed-Out Holders in the proportions set forth on Schedule IV hereto; provided that the Sellers’ Representative may round distribution amounts up or down to whole dollars to the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery of the Escrowed Shares and Escrowed Funds, the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)necessary.