Common use of Indemnification Obligations Clause in Contracts

Indemnification Obligations. The Escrow Shares shall serve --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders under Article X of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge under such indemnity obligations under the Merger Agreement ("Damages") and any award of attorneys' ------- fees and charges owing to Cambridge pursuant to Section 2.3(c)(iv) or 11.2 of this Agreement (a "Prevailing Party Award") shall be made by the release of ---------------------- Escrow Shares to Cambridge (each such payment, an "Escrow Adjustment"), subject ----------------- to the limitations set forth in Section 10.4 of the Merger Agreement. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage of the Cambridge Merger Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall be made by the release to Cambridge of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement on the Deemed Value Per Cambridge Share (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Common Shares. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share.

Indemnification Obligations. The As between the Interested Parties, --------------------------- the Escrow Shares shall serve --------------------------- as the first source, but not the sole source, source of payment for the indemnity obligations of the Holders under Article X of the Merger Agreement. For the purposes Agreement including without limitation any indemnity obligation of this Escrow Agreement, those obligations shall continue Management (as defined in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Agreement). Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("Damages") and any award of attorneys' ------- fees and charges owing to Cambridge Parent ------- pursuant to Section 2.3(c)(iv) or 11.2 12.2 of this Agreement (a "Prevailing Party ---------------- Award") shall be made by the release of ---------------------- Escrow Shares to Cambridge Parent (each such ----- payment, an "Escrow Adjustment"), subject ----------------- to by the limitations set forth in Section 10.4 of the Merger AgreementEscrow Agent. By the execution of this ----------------- Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Total Topaz Merger Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Joint written instructions from the Parent and Indemnification Representative shall be given to the Escrow Agent to make any Escrow Adjustment pursuant to Sections 2.3(a),(b),(c)(iv), 3.3 or 12.2 herein and said instructions shall contain a determination and certify to the Escrow Agent the amount of any Escrow Adjustment, and identify that portion of the Escrow Adjustment which constitutes Damages and that portion of the Escrow Adjustment which constitutes a Prevailing Party Award, to the extent applicable. Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement, which percentage interests shall be certified in writing by the Indemnification Representative and Parent to the Escrow Agent and as set forth in Exhibit A hereto. Each Escrow Adjustment to the Escrow Shares shall be made by the release by the Escrow Agent to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being basedequal to, for all purposes under this Escrow Agreement on Agreement, the Deemed Value Per Cambridge Share 5-day trailing average closing price of the Topaz Common Stock (the "Topaz Average Current Price") (adjusted --------------------------- for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) for the period ending on the trading day immediately prior to the date of such joint written instructions notwithstanding any changes in market value of Cambridge Common Total Topaz Merger Shares after the Closing Date, as certified to the Escrow Agent by Parent. In any circumstance in which the Escrow Agent is required to make a distribution of the Escrow Shares in order to perform under or administer this Agreement, Parent shall determine and certify to the Escrow Agent the per share value of any such Escrow Shares, and Parent shall promptly provide such written certification to the Escrow Agent, with a copy to the Indemnification Representative. The Escrow Agent shall be entitled to rely conclusively upon any such certification of per share value without any duty to verify or recalculate the same, and the Escrow Agent shall not be liable for any action or omission of, or delay on the part of, Parent in such connection. Notwithstanding any term hereof to the contrary, in any such instance, the Escrow Agent shall be entitled to refrain from taking any action otherwise required hereunder (and which requires a determination of per share value), without liability on its part, until it is provided with notice in accordance with this Agreement. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded down to the nearest whole Escrow Share.

Indemnification Obligations. The Escrow Shares shall Fund will serve --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders Holder under Article X XI of the Merger Agreement. For the purposes of this Escrow Reorganization Agreement, those which obligations shall will continue in accordance with Article X XI of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Reorganization Agreement. Payment for any amount determined as provided below to be owing to Cambridge Merilus USA or Merilus Canada under such indemnity obligations under the Merger Reorganization Agreement ("Damages") and any award of attorneys' ------- fees and charges owing to Cambridge Merilus USA pursuant to Section Sections 2.3(c)(iv) or 11.2 4.3 of this Reorganization Agreement (a "Prevailing Party Award") shall will be made by the release of ---------------------- all or a portion, as the case may be, of the Escrow Shares Fund to Cambridge Merilus USA (each such payment, an "Escrow Adjustment"), subject ----------------- to the limitations set forth in Section 10.4 11.02 of the Merger Reorganization Agreement. By the execution of this Escrow Agreement, each of the Holders Holder agrees to be bound 3 by the indemnification provisions set forth in Article X XI of the Merger Reorganization Agreement and confirms that the issuance by Merilus USA of the Escrow Percentage of the Cambridge Merger Shares Merilus USA Stock pursuant to the Merger Reorganization Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge shall Merilus USA will not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall will be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge Merilus USA of the Escrow Shares shall Fund will be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall Fund will be made by the release to Cambridge Merilus USA of a portion of the Escrow Shares Fund having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares any Escrow Shares being basedequal, for all purposes under this Escrow Agreement Agreement, to the closing price of such Escrow Shares on the Deemed Value Per Cambridge Share Closing Date (adjusted for the "Merilus USA Stock Price"). Any such release will be made first through the release of Escrow Shares, if any share dividendare then held in the Escrow Fund, reclassification, stock split, subdivision or combination and thereafter through the release of shares, recapitalization, merger or other events) notwithstanding any changes in market Proceeds 139 having an aggregate value equal to the value of Cambridge Common Sharesthe number of Escrow Shares which would otherwise have been so released hereunder in satisfaction of the Holder's indemnification obligation. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall will be rounded to the nearest whole Escrow ShareShare and any amounts released in excess of the Damages as a result of such rounding will be returned to Escrow Fund. In the event of doubt, and notwithstanding any contained in this Section 2.1 to the contrary, Merilus USA, and the Holder agree that the foregoing provisions of this Section 2.1 will be applied and interpreted in a manner consistent with the "pooling of interests" accounting rules.

Indemnification Obligations. The Escrow Shares shall serve --------------------------- as the first source, but not and the sole sourcesource until the Release Date (and thereafter shall serve as a "cap" on indemnification payments, subject to the proviso below), of payment for the indemnity obligations of the Holders under the Merger Agreement, PROVIDED, HOWEVER, that each Holder shall further be severally liable for any breach by such Holder of such Holder's representation in a Letter of Transmittal, it being agreed and understood that except as set forth in the immediately preceding proviso and Sections 3.3 and 11 below, no Holder shall have any liability beyond such Holder's allocable portion of the Escrow Shares as set forth on EXHIBIT 1.1 hereto. The liability of any single Holder for indemnification obligations pursuant to Article X IX of the Merger AgreementAgreement shall be limited to such Holder's PRO RATA share of any indemnity obligations based on the number of Escrow Shares deposited in escrow by such Holder relative to the aggregate number of Escrow Shares and the aggregate liability of any single Holder for indemnification obligations pursuant to Article IX of the Merger Agreement shall be equal to a dollar amount equal to the Parent Average Closing Price multiplied by the aggregate number of Escrow Shares deposited in escrow by such Holder; PROVIDED, HOWEVER, that there will be no limitation on the indemnification obligations of any person arising out of criminal activity or fraud by such person, including, without limitation, any actions in such person's capacity as an employee, officer or director of INT'X.xxx or its Subsidiaries, or for any Holder for breaches of any representation or warranty contained in the Letter of Transmittal delivered by such Holder. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell INT'X.xxx pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("DamagesDAMAGES") and any award of attorneys' ------- fees and charges (a "PREVAILING PARTY AWARD") owing to Cambridge a party hereto pursuant to Section 2.3(c)(iv) or 11.2 of this Agreement (a "Prevailing Party Award") shall be made by the release of ---------------------- Escrow Shares to Cambridge the appropriate party (each such payment, an "Escrow AdjustmentESCROW ADJUSTMENT"), subject ----------------- to the limitations set forth in Section 10.4 9.3 of the Merger Agreement. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage of the Cambridge Merger Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary hereinherein or in the Merger Agreement, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal feesfees or expenses). Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified as set forth on EXHIBIT 1.1, and in the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall be made by the release to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and the release to Parent or the Indemnification Representative, as applicable, of any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement Agreement, on the Deemed Value Per Cambridge Share Parent Average Closing Price (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Parent Common SharesStock. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share.

Indemnification Obligations. The Escrow Shares Fund shall serve --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders under Article X XI of the Merger Agreement. For the purposes of this Escrow Agreement, those which obligations shall continue in accordance with Article X XI of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Buyer or the Company under such indemnity obligations under the Merger Agreement ("DamagesDAMAGES") and any award of attorneys' ------- fees and charges owing to Cambridge Buyer pursuant to Section Sections 2.3(c)(iv) or 11.2 4.3 of this Agreement (a "Prevailing Party AwardPREVAILING PARTY 3 AWARD") shall be made by the release of ---------------------- all or a portion, as the case may be, of the Escrow Shares Fund to Cambridge Buyer (each such payment, an "Escrow AdjustmentESCROW ADJUSTMENT"), subject ----------------- to the limitations set forth in Section 10.4 11.02 of the Merger Agreement. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X XI of the Merger Agreement and confirms that the issuance by Buyer of the Escrow Percentage of the Cambridge Merger Shares Buyer Stock pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Buyer shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge Buyer of the Escrow Shares Fund shall be made in proportion to each of the Holders' interest in the Escrow Shares Fund as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares Fund shall be made by the release to Cambridge Buyer of a portion of the Escrow Shares Fund having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares any Escrow Shares being basedequal, for all purposes under this Escrow Agreement Agreement, to the closing price of such Escrow Shares on the Deemed Value Per Cambridge Share Closing Date (adjusted for the "BUYER STOCK PRICE"). Any such release shall be made first through the release of Escrow Shares, if any share dividendare then held in the Escrow Fund, reclassification, stock split, subdivision or combination and thereafter through the release of shares, recapitalization, merger or other events) notwithstanding any changes in market Proceeds having an aggregate value equal to the value of Cambridge Common Sharesthe number of Escrow Shares which would otherwise have been so released hereunder in satisfaction of the Holders' indemnification obligation. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow ShareShare and any amounts released in excess of the Damages as a result of such rounding shall be returned to Escrow Fund. In the event of doubt, and notwithstanding any contained in this Section 2.1 to the contrary, Buyer, the Indemnification Representative and the Holders agree that the foregoing provisions of this Section 2.1 shall be applied and interpreted in a manner consistent with the "pooling of interests" accounting rules.

Indemnification Obligations. The Escrow Shares shall serve --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders under Article X IX of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X IX of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell Natchez pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("Damages") and any award of attorneys' ------- fees and charges owing to Cambridge Parent pursuant to Section 2.3(c)(iv) or 11.2 of this Escrow Agreement (a "Prevailing Party Award") shall be made by the release of ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "Escrow Adjustment"), subject ----------------- to the limitations set forth in Section 10.4 . By virtue of their approval of the Merger Agreement. By Agreement or through the execution of this Escrow Agreementthe Investment Agreement or some other instrument to such effect, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X IX of the Merger Agreement and confirms that the issuance of the Escrow Percentage of the Cambridge Merger Shares pursuant to the Merger Agreement is are subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Each Escrow Adjustments Adjustment and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall be made by the release to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party AwardAward (as the same may be determined under this Escrow Agreement), with the per share value of such shares being based, for all purposes under this Escrow Agreement on the Deemed Value Per Cambridge Share Parent Average Closing Price (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Parent Common Shares. In lieu of releasing any fractional Escrow SharesShares upon an Escrow Adjustment, any fraction of a released Escrow Share that would otherwise be released shall be rounded down to the nearest whole Escrow Share. Notwithstanding anything contained herein to the contrary, any Escrow Adjustment or other release of Escrow Shares hereunder shall only be made by the Escrow Agent in accordance with written instructions given by Parent and/or the Indemnification Representative pursuant to the terms and conditions of this Escrow Agreement. Parent and the Indemnification Agent hereby agree that all such written instructions and any other notices given to the Escrow Agent shall comply with the limitations set forth in Sections 9.4 and 9.6 of the Merger Agreement.

Indemnification Obligations. The Except as otherwise provided herein, the Escrow Shares shall serve --------------------------- as the first source, but not the sole source, source of payment for the indemnity obligations of Mysticom and the Holders under Article X Section 11 of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("“Damages"”) and any award of attorneys' ------- ’ fees and charges owing to Cambridge Parent pursuant to Section 2.3(c)(iv) or 11.2 12.2 of this Agreement (a "“Prevailing Party Award"”) shall be made by the release of ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "“Escrow Adjustment"”), subject ----------------- to by the limitations set forth in Section 10.4 of the Merger AgreementEscrow Agent. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X Section 11 of the Merger Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Aggregate Merger Shares Consideration pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Upon joint written instructions from the Parent and/or Indemnification Representative, as the case may be, to the Escrow Agent to make any Escrow Adjustment pursuant to Sections 2.3(a),(b),(c)(iv), 3.3 or 12.2, the Escrow Agent shall be entitled to request that the Parent and Indemnification Representative determine and certify to the Escrow Agent the amount of any Escrow Adjustment, and to identify that portion of the Escrow Adjustment which constitutes Damages and that portion of the Escrow Adjustment which constitutes a Prevailing Party Award, to the extent applicable. Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' ’ interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement, which percentage interests shall be certified in writing to the Escrow Agent. Each Escrow Adjustment to the Escrow Shares shall be made by the release by the Escrow Agent to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement Agreement, on the Deemed Value Per Cambridge Share of Parent Common Stock on the date that such Claim (as defined below) is resolved (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge the Parent Common Shares after the Closing Date, as certified to the Escrow Agent by Parent. In any circumstance in which the Escrow Agent is required to make a determination of per share value of the Escrow Shares in order to perform under or administer this Agreement, the Escrow Agent shall be entitled to request Parent to determine and certify to the Escrow Agent the per share value of any such Escrow Shares, and Parent shall promptly provide such written certification to the Escrow Agent, with a copy to the Indemnification Representative. The Escrow Agent shall be entitled to rely conclusively upon any such certification of per share value without any duty to verify or recalculate the same, and the Escrow Agent shall not be liable for any action or omission of, or delay on the part of, Parent in such connection. Notwithstanding any term hereof to the contrary, in any such instance, the Escrow Agent shall be entitled to refrain from taking any action otherwise required hereunder (and which requires a determination of per share value), without liability on its part, until it is provided with notice in accordance with this Agreement. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share. To the extent any Escrow Shares remain outstanding after rounding, the Parent and the Indemnification Representative shall instruct the Escrow Agent as to the distribution of the remaining Escrow Shares.

Indemnification Obligations. The Except as otherwise provided herein, the Escrow Shares shall serve --------------------------- as the first source, but not the sole source, source of payment for the indemnity obligations of the Holders DJCE under Article X 8 of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Asset Purchase Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Asset Purchase Agreement ("“Damages"”) and any award of attorneys' ------- ’ fees and charges owing to Cambridge Parent pursuant to Section Sections 2.3(c)(iv) or 11.2 of this Agreement (a "“Prevailing Party Award"”) shall be made by the release of ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "“Escrow Adjustment"”), subject ----------------- to by the limitations set forth in Section 10.4 of the Merger AgreementEscrow Agent. By the execution of this Escrow Agreement, each of the Holders Parent and the Holder agrees to be bound by the indemnification provisions set forth in Article X 8 of the Merger Asset Purchase Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Merger Shares Aggregate Purchase Consideration pursuant to the Merger Asset Purchase Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Upon joint written instructions from the Parent and the Holder to the Escrow Adjustments and corresponding release Agent to Cambridge of make any Escrow Shares Adjustment pursuant to Sections 2.3(a),(b),(c)(iv), 3.3 or 11.2, the Escrow Agent shall be made in proportion entitled to each request that the Parent and Holder determine and certify to the Escrow Agent the amount of any Escrow Adjustment, and to identify that portion of the Holders' interest in Escrow Adjustment which constitutes Damages and that portion of the Escrow Shares as of Adjustment which constitutes a Prevailing Party Award, to the date or dates specified and the manner provided for in this Escrow Agreementextent applicable. Each Escrow Adjustment to the Escrow Shares shall be made by the release by the Escrow Agent to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement Agreement, on the Deemed Value Per Cambridge Share of Parent Common Stock on the date that such Claim (as defined below) is resolved (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger recapitalization or other similar events) notwithstanding any changes in market value of Cambridge the Parent Common Stock after the Closing Date, as certified to the Escrow Agent by Parent and Holder. In any circumstance in which the Escrow Agent is required to make a determination of per share value of the Escrow Shares in order to perform under or administer this Agreement, the Escrow Agent shall be entitled to request Parent and Holder jointly to determine and certify to the Escrow Agent the per share value of any such Escrow Shares, and Parent and Holder shall promptly provide such written certification to the Escrow Agent. The Escrow Agent shall be entitled to rely conclusively upon any such certification of per share value without any duty to verify or recalculate the same, and the Escrow Agent shall not be liable for any action or omission of, or delay on the part of, Parent and/or Holder in such connection. Notwithstanding any term hereof to the contrary, in any such instance, the Escrow Agent shall be entitled to refrain from taking any action otherwise required hereunder (and which requires a determination of per share value), without liability on its part, until it is provided with notice in accordance with this Agreement. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share. To the extent any Escrow Shares remain outstanding after rounding, the Parent and the Holder shall instruct the Escrow Agent as to the distribution of the remaining Escrow Shares.

Indemnification Obligations. The Escrow Shares shall serve --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders under Article X of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell Calogic pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("DamagesDAMAGES") and any award of attorneys' ------- fees and charges owing to Cambridge Parent pursuant to Section 2.3(c)(iv) or 11.2 of this Agreement (a "Prevailing Party AwardPREVAILING PARTY AWARD") shall be made by the release of ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "Escrow AdjustmentESCROW ADJUSTMENT"), subject ----------------- to the limitations set forth in Section 10.4 of the Merger Agreement. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Parent Merger Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall be made by the release to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement on the Deemed Value Per Cambridge Share Parent Average Closing Price (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Parent Common Shares. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share.

Indemnification Obligations. The Escrow Shares shall serve as a --------------------------- as the first source, source (but not the sole source, ) of payment for the indemnity obligations of the Holders under Article X of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("Damages") and any award of attorneys' ------- fees and charges owing to Cambridge Parent pursuant to Section 2.3(c)(iv) or 11.2 12.2 of this Agreement (a "Prevailing Party Award") shall be made by the release of Escrow ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "Escrow Adjustment"), subject by the Escrow ----------------- to the limitations set forth in Section 10.4 of the Merger AgreementAgent. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Merger Total TranSwitch Common Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Upon joint written instructions from the Parent and/or Indemnification Representative, as the case may be, to the Escrow Agent to make any Escrow Adjustment pursuant to Sections 2.3(a),(b),(c)(iv), 3.3 or 12.2, the Escrow Agent shall be entitled to request that the Parent and Indemnification Representative determine and certify to the Escrow Agent the amount of any Escrow Adjustment, and to identify that portion of the Escrow Adjustment which constitutes Damages and that portion of the Escrow Adjustment which constitutes a Prevailing Party Award, to the extent applicable. Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement, which percentage interests shall be certified in writing to the Escrow Agent. Each Escrow Adjustment to the Escrow Shares shall be made by the release by the Escrow Agent to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement Agreement, on the Deemed Value Per Cambridge Share Average Price (as defined in the Merger Agreement) (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Total TranSwitch Common Shares after the Closing Date, as certified to the Escrow Agent by Parent. In any circumstance in which the Escrow Agent is required to make a determination of per share value of the Escrow Shares in order to perform under or administer this Agreement, the Escrow Agent shall be entitled to request Parent to determine and certify to the Escrow Agent the per share value of any such Escrow Shares, and Parent shall promptly provide such written certification to the Escrow Agent, with a copy to the Indemnification Representative. The Escrow Agent shall be entitled to rely conclusively upon any such certification of per share value without any duty to verify or recalculate the same, and the Escrow Agent shall not be liable for any action or omission of, or delay on the part of, Parent in such connection. Notwithstanding any term hereof to the contrary, in any such instance, the Escrow Agent shall be entitled to refrain from taking any action otherwise required hereunder (and which requires a determination of per share value), without liability on its part, until it is provided with notice in accordance with this Agreement. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share.

Indemnification Obligations. The Escrow Shares shall serve as --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders under Article X of the Merger Agreement. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell Calogic pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Agreement ("Damages") and any award of attorneys' ------- fees and charges owing to Cambridge Parent pursuant to Section 2.3(c)(iv) or 11.2 of this Agreement (a "Prevailing Party Award") shall be made by the release of Escrow ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "Escrow Adjustment"), subject ----------------- to the ----------------- limitations set forth in Section 10.4 of the Merger Agreement. By the execution of this Escrow Agreement, each of the Holders agrees to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Parent Merger Shares pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares shall be made by the release to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement on the Deemed Value Per Cambridge Share Parent Average Closing Price (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Parent Common Shares. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share.

Indemnification Obligations. The Total Escrow Shares shall serve --------------------------- as the first source, but not the sole source, source of payment for the indemnity obligations of the Holders under Article X of the Merger Agreement, except as specifically provided otherwise therein. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell DA pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Delano under such indemnity obligations under the Merger Agreement ("DamagesDAMAGES") and any award of attorneys' ------- fees and charges owing to Cambridge Delano pursuant to Section 2.3(c)(iv) or 11.2 of this Agreement (a "Prevailing Party AwardPREVAILING PARTY AWARD") shall be made by the release of ---------------------- Escrow Shares and Cash Escrow to Cambridge Delano (each such paymentrelease, an "Escrow AdjustmentESCROW ADJUSTMENT"), subject ----------------- to the limitations set forth in Section 10.4 of the Merger Agreement. By Any Prevailing Party Award to the execution of this Escrow AgreementHolders shall be paid to the Holders. Pursuant to the Merger, each of the Holders agrees is deemed to have agreed to be bound by the indemnification provisions set forth in Article X of the Merger Agreement and confirms to have confirmed that the issuance of the Escrow Percentage of the Cambridge Merger Shares pursuant to the Merger Agreement Consideration is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge Delano of Escrow Shares and Cash Escrow shall be made in proportion to each of the Holders' interest in the Escrow Shares and Cash Escrow as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Total Escrow Shares shall be made by the release to Cambridge Delano of Escrow Shares and Cash Escrow having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement on the Deemed Value Per Cambridge Share average closing price of the Delano Common Stock (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Common Sharesfor the 10 trading days ending two business days before the payment. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded up or down to the nearest whole Escrow Share.

Indemnification Obligations. The Escrow Shares shall serve as --------------------------- as the first source, but not the sole source, source of payment for the indemnity obligations of the Holders under Article X 7 of the Merger AgreementExchange Agreement except as otherwise provided in said Article 7. For the purposes of this Escrow Agreement, those obligations shall continue in accordance with Article X 7 of the Merger Exchange Agreement, notwithstanding the merger purchase of Merger Sub into Excell all the Shares by Parent pursuant to the Merger Exchange Agreement. Payment for any amount determined as provided below to be owing to Cambridge Parent under such indemnity obligations under the Merger Exchange Agreement ("Damages") and any ------- award of attorneys' ------- fees and charges owing to Cambridge Parent pursuant to Section 2.3(c)(iv) or 11.2 12.2 of this Agreement (a "Prevailing Party Award") shall be made ---------------------- by the release of ---------------------- Escrow Shares to Cambridge Parent (each such payment, an "Escrow ------ Adjustment"), subject ----------------- to by the limitations set forth in Section 10.4 of the Merger AgreementEscrow Agent. By the execution of this Escrow Agreement, ---------- each of the Holders agrees to be bound by the indemnification provisions set forth in Article X 7 of the Merger Exchange Agreement and confirms that the issuance of the Escrow Percentage Amount of the Cambridge Merger Shares Parent Common Stock pursuant to the Merger Exchange Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Parent shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Upon joint written instructions from the Parent and/or Indemnification Representative, as the case may be, to the Escrow Agent to make any Escrow Adjustment pursuant to Sections 2.3(a),(b),(c)(iv), 3.3 or 12.2, the Escrow Agent shall be entitled to request that the Parent and Indemnification Representative determine and certify to the Escrow Agent the amount of any Escrow Adjustment, and to identify that portion of the Escrow Adjustment which constitutes Damages and that portion of the Escrow Adjustment which constitutes a Prevailing Party Award, to the extent applicable. Any Escrow Adjustments and corresponding release to Cambridge Parent of Escrow Shares shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement, which percentage interests shall be certified in writing to the Escrow Agent. Each Escrow Adjustment to the Escrow Shares shall be made by the release by the Escrow Agent to Cambridge Parent of Escrow Shares having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares being based, for all purposes under this Escrow Agreement Agreement, on the Deemed Value Per Cambridge Share last sale price of Parent Common Stock on the Closing Date (adjusted for any share dividend, reclassification, stock split, subdivision or combination of shares, recapitalization, merger or other events) notwithstanding any changes in market value of Cambridge Parent Common Stock after the Closing Date, as certified to the Escrow Agent by Parent. In any circumstance in which the Escrow Agent is required to make a determination of per share value of the Escrow Shares in order to perform under or administer this Agreement, the Escrow Agent shall be entitled to request Parent to determine and certify to the Escrow Agent the per share value of any such Escrow Shares, and Parent shall promptly provide such written certification to the Escrow Agent, with a copy to the Indemnification Representative. The Escrow Agent shall be entitled to rely conclusively upon any such certification of per share value without any duty to verify or recalculate the same, and the Escrow Agent shall not be liable for any action or omission of, or delay on the part of, Parent in such connection. Notwithstanding any term hereof to the contrary, in any such instance, the Escrow Agent shall be entitled to refrain from taking any action otherwise required hereunder (and which requires a determination of per share value), without liability on its part, until it is provided with notice in accordance with this Agreement. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow Share.

Indemnification Obligations. The Escrow Shares Fund shall serve --------------------------- as the first source, but not the sole source, of payment for the indemnity obligations of the Holders Holder under Article X XI of the Merger Agreement. For the purposes of this Escrow Agreement, those which obligations shall continue in accordance with Article X XI of the Merger Agreement, notwithstanding the merger of Merger Sub into Excell pursuant to the Merger Agreement. Payment for any amount determined as provided below to be owing to Cambridge Buyer or the Company under such indemnity obligations under the Merger Agreement ("DamagesDAMAGES") and any award of attorneys' ------- fees and charges owing to Cambridge Buyer pursuant to Section Sections 2.3(c)(iv) or 11.2 4.3 of this Agreement (a "Prevailing Party AwardPREVAILING PARTY AWARD") shall be made by the release of ---------------------- all or a portion, as the case may be, of the Escrow Shares Fund to Cambridge Buyer (each such payment, an "Escrow AdjustmentESCROW ADJUSTMENT"), subject ----------------- to the limitations set forth in Section 10.4 11.02 of the Merger Agreement. By the execution of this Escrow Agreement, each of the Holders Holder agrees to be bound by the indemnification provisions set forth in Article X XI of the Merger Agreement and confirms that the issuance by Buyer of the Escrow Percentage of the Cambridge Merger Shares Buyer Stock pursuant to the Merger Agreement is subject to this Escrow Agreement. Notwithstanding anything to the contrary herein, Cambridge Buyer shall not be entitled to receive payment of any portion of a Prevailing Party Award which is already a part of Damages (i.e., there shall be no double payment of legal fees). Any Escrow Adjustments and corresponding release to Cambridge Buyer of the Escrow Shares Fund shall be made in proportion to each of the Holders' interest in the Escrow Shares as of the date or dates specified and the manner provided for in this Escrow Agreement. Each Escrow Adjustment to the Escrow Shares Fund shall be made by the release to Cambridge Buyer of a portion of the Escrow Shares Fund having an aggregate value equal to the Damages and any Prevailing Party Award, with the per share value of such shares any Escrow Shares being basedequal, for all purposes under this Escrow Agreement Agreement, to the closing price of such Escrow Shares on the Deemed Value Per Cambridge Share Closing Date (adjusted for the "BUYER STOCK PRICE"). Any such release shall be made first through the release of Escrow Shares, if any share dividendare then held in the Escrow Fund, reclassification, stock split, subdivision or combination and thereafter through the release of shares, recapitalization, merger or other events) notwithstanding any changes in market Proceeds having an aggregate value equal to the value of Cambridge Common Sharesthe number of Escrow Shares which would otherwise have been so released hereunder in satisfaction of the Holder's indemnification obligation. In lieu of releasing any fractional Escrow Shares, any fraction of a released Escrow Share that would otherwise be released shall be rounded to the nearest whole Escrow ShareShare and any amounts released in excess of the Damages as a result of such rounding shall be returned to Escrow Fund. In the event of doubt, and notwithstanding any contained in this Section 2.1 to the contrary, Buyer, and the Holder agree that the foregoing provisions of this Section 2.1 shall be applied and interpreted in a manner consistent with the "pooling of interests" accounting rules.