Common use of Claims and Payment; Release from Escrow Clause in Contracts

Claims and Payment; Release from Escrow. The Escrow Agent shall disburse the Escrow Property (or portions thereof) from time to time to Buyer or Seller as set forth in, and in accordance with, the joint written instructions of the Interested Parties, each (a) signed by an authorized representative of Buyer listed on Schedule B and an authorized representative of Seller listed on Schedule C, (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and (c) substantially in the form attached hereto as Schedule D (“Joint Instructions”). Joint Instructions provided to the Escrow Agent do not need to be included on a single document, and may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions with respect to the Escrow Property (or portions thereof), the Escrow Agent shall promptly, but in any event within one (1) Business Day after receipt of any Joint Instructions, disburse the Escrow Property (or portions thereof) to the party or parties set forth in, and in accordance with, such Joint Instructions. Either Seller or Buyer may deliver to the Escrow Agent, with a copy to the non-delivering Interested Party, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part of the Escrow Property to Seller or Buyer, as applicable. Within ten (10) Business Days after receipt of such Judgment, the Escrow Agent shall disburse the Escrow Property (or the applicable portion thereof) as directed by such Judgment. For purposes of this Agreement, “Business Day” shall mean any day that the Escrow Agen is open for business.

Claims and Payment; Release from Escrow. The Escrow Agent Company shall disburse the Escrow Property (or portions thereof) from time to time to Buyer or Seller as set forth in, and act in accordance with, and the joint written instructions of Escrow Agent shall hold and release the Interested PartiesEscrowed Property as provided in, each this Section 2 as follows: (a) signed On the Shares Closing Date (as defined in the Purchase Agreements), and concurrently with the Escrow Agent’s receipt of an instruction from the Company confirming the electronic delivery of any Investor’s Shares to the Company pursuant to Section 1(b) of the relevant Purchase Agreement, the Escrow Agent shall deliver to each such selling Investor(s), for such selling Investor’s use without restriction, an amount equal to (x) the Maturity Date Purchase Price multiplied by an authorized representative (y) the number of Buyer listed on Shares being sold by such selling Investor (subject to the Share Purchase Limit (as defined in the Purchase Agreements)), which shall be paid by wire transfer of immediately available funds from the Escrow Account in accordance with the payment instructions provided in Schedule B and an authorized representative of Seller listed on Schedule C, hereto. (b) On the date on which the Escrow Agent is notified in writing by the Company that an Investor’s Purchase Agreement is being terminated pursuant to Sections 7(g) or 7(h) thereof, concurrently with respect the Escrow Agent’s receipt of an instruction from the Company confirming the electronic delivery of all of such Investor’s Shares (including any Additional Shares) to Buyerthe Company, confirmed the Escrow Agent shall deliver to each such Investor, for such Investor’s use without restriction, an amount equal to (i) the Escrowed Property, divided by telephone callback (ii) the total number of Shares held by the Investors as set forth on of the date of the $5.00 Notice Trigger (as defined in the Purchase Agreements) or the Insolvency Event (as defined in the Purchase Agreements), as applicable, multiplied by the number of Shares then held by such Investor, which shall be paid by wire transfer of immediately available funds from the Escrow Account in accordance with the payment instructions provided in Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and B hereto. (c) substantially in the form attached hereto as Schedule D (“Joint Instructions”). Joint Instructions provided to Upon receipt by the Escrow Agent do not need to be included on of a single documentwritten notice from the Company that an Investor has sold Shares (including any Additional Shares) as provided in Section 5(e) of the relevant Purchase Agreement (any such date, and may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions with respect to the Escrow Property (or portions thereofan “Instruction Date”), the Escrow Agent shall promptlyrelease to the Company, but in any event within one accordance with the payment instructions provided by the Company, an amount equal to (1i) Business Day after receipt the Escrowed Property divided by the number of any Joint InstructionsShares held by Investors as of such Instruction Date, disburse multiplied by (ii) the number of Shares sold by such Investor pursuant to Section 5(e) of the relevant Purchase Agreement in accordance with the payment instructions provided in Schedule B hereto. (d) If, on or before the Maturity Date, the Purchase Agreements are terminated pursuant to Section 7(f) of the Purchase Agreement, then the Escrow Agent shall promptly release to the Company any Escrowed Property that remains in the Escrow Account in accordance with the payment instructions provided in Schedule B hereto. (or portions thereofe) If any Investor (i) fails to timely deliver a Shares Sale Notice (as defined in the Purchase Agreements) to the party or parties set forth in, Company and the Escrow Agent five Business Days (as defined in the Purchase Agreements) prior to the Maturity Date in accordance withwith Section 1(a) of the relevant Purchase Agreement, or (ii) notifies the Escrow Agent that such Joint Instructions. Either Seller or Buyer may deliver Investor does not intend to exercise such Investor’s right to sell any of its Shares to the Company pursuant to Section 1(a) of the relevant Purchase Agreement, then, on the Maturity Date and upon written instruction of the Company, the Escrow Agent, with a copy Agent shall release to the non-delivering Interested Party, Company any Escrowed Property that remains in the Escrow Account (after giving effect to all Investors’ timely delivered Shares Sale Notices) in accordance with the payment instructions provided in Schedule B hereto. (f) Upon receipt by the Escrow Agent of a certified copy of a court order, together with (i) a certificate of the Company to the effect that such order is final and non-appealable judgment or order of and from a court of competent jurisdiction or a final non-appealable arbitration decision having proper authority and (each, ii) written payment instructions of the Company to effectuate such order (a “JudgmentFinal Determination”) awarding all or any part of the Escrow Property to Seller or Buyer, as applicable. Within ten (10) Business Days after receipt of such Judgment), the Escrow Agent shall on the fifth (5th) Business Day following receipt of such Final Determination, disburse as directed, part or all, as the case may be, of the Escrowed Property (but only to the extent funds are available in the Escrow Property (or the applicable portion thereofAccount) as directed by in accordance with such JudgmentFinal Determination. For purposes of this Agreement, “Business Day” The Escrow Agent shall mean any day that the Escrow Agen is open for businessbe entitled to act on such Final Determination without further inquiry.

Claims and Payment; Release from Escrow. (a) The Escrow Agent shall disburse hold the Escrow Property in safekeeping and disburse the same or any part thereof only in accordance with and upon: (i) written instructions of Buyer and Seller (a “Joint Written Direction”), duly executed by an Authorized Person of each of Buyer and Seller (or portions counterparts thereof), or (ii) a written instruction, order or judgment (x) which has not been reversed, stayed, modified, amended, enjoined, set aside, annulled or suspended, (y) with respect to which no request for a stay, motion or application for reconsideration or rehearing, notice of appeal or petition for certiorari is filed within the deadline provided by applicable statute or regulation or as to which any appeal that has been taken or any petition for certiorari that has been or may be filed has been resolved by the highest court to which the order or judgment was appealed or from time which certiorari was sought and (z) as to time which the deadlines for filing such request, motion, petition, application, appeal or notice referred to in clause (y) above have expired of a court of competent jurisdiction (a “Final Order”). (b) Not later than two (2) Business Days after receipt of a Joint Written Direction or seven (7) Business Days after receipt of a Final Order, in either case, directing the Escrow Agent to disburse property from the Escrow Property contained in the Indemnification Escrow Account in accordance with the terms and provisions of such Joint Direction or Court Direction, the Escrow Agent shall disburse such Escrow Property in accordance therewith. (c) Any Joint Direction or Final Order may instruct the Escrow Agent to release all or any portion of the remainder of the Escrow Property contained in the Indemnification Escrow Account. (d) All disbursements to Buyer or Seller of all or any portion of the Escrow Property shall be made in accordance with the instructions provided to the Escrow Agent by Buyer or Seller as set forth inin Schedule D attached hereto or any other instructions as may be provided in a Joint Written Direction or Final Order. (e) Unless otherwise directed in a Joint Written Consent or Final Order, and if, pursuant to any distribution made in accordance withwith this Section 2, the joint written instructions of the Interested Parties, each (a) signed by an authorized representative of Buyer listed on Schedule B and an authorized representative of Seller listed on Schedule C, (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and (c) substantially in the form attached hereto as Schedule D (“Joint Instructions”). Joint Instructions provided to the Escrow Agent do not need will deliver shares of Purchaser’s common stock to be included on a single document, and may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions with respect to the Escrow Property an Interested Party (or portions thereofits designee), the Escrow Agent shall promptly, but in any event within one (1) Business Day after receipt of any Joint Instructions, disburse the Escrow Property (or portions thereof) to the party or parties set forth in, and in accordance with, such Joint Instructions. Either Seller or Buyer may also concurrently deliver to the Escrow Agent, with a copy to the non-delivering Interested Party, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision such person all Dividends (each, a “Judgment”as defined below) awarding all or any part of the Escrow Property to Seller or Buyer, as applicable. Within ten (10) Business Days after receipt received on account of such Judgment, shares and held by the Escrow Agent shall disburse the Escrow Property (or the applicable portion thereof) as directed by at such Judgment. For purposes of this Agreement, “Business Day” shall mean any day that the Escrow Agen is open for businesstime.

Claims and Payment; Release from Escrow. (a) Subject to the terms and provisions of the Stock Purchase Agreement, if the Escrow Agent receives a written notice from the Buyer specifying in reasonable detail, the nature and the dollar amount of a claim for Losses for which Purchaser Indemnified Parties may seek indemnification from Parent or the Seller under Article VIII or Article X of the Stock Purchase Agreement (an “Escrow Payment Notice”), which Escrow Payment Notice shall include a certificate executed by an Authorized Person of Buyer certifying as to the good faith belief of Buyer as to the claim and the dollar amount of such claim, the Escrow Agent shall retain all or a portion of the Escrow Property sufficient to indemnify the Buyer for such Losses until the first to occur of the following: (i) the date on which the Escrow Agent receives a certificate of instruction in the form of Exhibit B hereto (the “Certificate of Instruction”) executed by the Buyer, Parent and/or the Seller, in which case the Escrow Agent shall disburse or retain such Escrow Property (or applicable portions thereof) as set forth in such Certificate of Instruction; or (ii) the date on which the Escrow Agent receives a Certificate of Instruction executed by the Buyer or Parent and/or the Seller, accompanied by a copy of an arbitral or judicial order or decree resolving the dispute, and providing that such order or decree is final and that the time for all appeals therefrom has expired with no appeal being taken, in which case the Escrow Agent shall disburse or retain such Escrow Property (or applicable portions thereof) as set forth in such Certificate of Instruction and in a manner consistent with such order or decree. (b) The Escrow Agent shall disburse distribute the Escrow Property (or applicable portions thereof) from time by wire transfer of immediately available funds to time to the Buyer’s bank accounts as may be specified by the Buyer or Seller as set forth in, and in accordance with, the joint written instructions relevant Certificate of the Interested Parties, each (a) signed by an authorized representative of Buyer listed on Schedule B and an authorized representative of Seller listed on Schedule C, (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and Instruction. (c) substantially in the form attached hereto as Schedule D (“Joint Instructions”). Joint Instructions provided to the The Escrow Agent do not need to be included on a single document, and may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions with respect to shall distribute the Escrow Property (or applicable portions thereof) by wire transfer of immediately available funds to Parent’s and/or the Seller’s bank account(s) as designated by Parent and/or the Seller, as follows: (i) On the first Business Day following the first (1st) anniversary of the date of this Agreement (the “First Release Date”), the Escrow Agent shall promptly, but in any event within one disburse to Parent and/or the Seller (1i) Business Day after receipt of any Joint Instructions, disburse the Escrow Property (or portions thereof) to the party or parties set forth in, and in accordance with, such Joint Instructions. Either Seller or Buyer may deliver to the Escrow Agent, with a copy to the non-delivering Interested Party, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part $5,000,000 of the Escrow Property less the sum of (x) the aggregate dollar amount disbursed to Seller or Buyerthe Buyer prior to the First Release Date pursuant to Section 3(a), as applicable. Within ten and (10y) the aggregate dollar amount retained by the Escrow Agent for Losses asserted by the Buyer prior to the First Release Date pursuant to Section 3(a) if, and then only to the extent that, such amount has not been disbursed to the Buyer pursuant to a Certificate of Instruction delivered pursuant to Section 3(a) prior to the First Release Date, and (ii) any accrued interest thereon. (ii) On the first Business Days after receipt Day following the second (2nd) anniversary of such Judgmentthe date of this Agreement (the “Second Release Date”), the Escrow Agent shall disburse to Parent and/or the Seller (i) $10,000,000 of the Escrow Property less the sum of (x) the aggregate dollar amount disbursed to the Buyer prior to the Second Release Date pursuant to Section 3(a), (y) the aggregate dollar amount retained by the Escrow Agent for Losses asserted by the Buyer prior to the Second Release Date pursuant to Section 3(a) if, and then only to the extent that, such amount has not been disbursed to the Buyer pursuant to a Certificate of Instruction delivered pursuant to Section 3(a) prior to the Second Release Date, and (z) any amounts disbursed to Parent and/or the Seller on the First Release Date, and (ii) any accrued interest thereon. (iii) On the first Business Day following the third (3rd) anniversary of the date of this Agreement (the “Third Release Date”), the Escrow Agent shall disburse to Parent and/or the Seller (i) $15,000,000 of the Escrow Property less the sum of (x) the aggregate dollar amount disbursed to the Buyer prior to the Third Release Date pursuant to Section 3(a), (y) the aggregate dollar amount retained by the Escrow Agent for Losses asserted by the Buyer prior to the Third Release Date pursuant to Section 3(a) if, and then only to the extent that, such amount has not been disbursed to the Buyer pursuant to a Certificate of Instruction delivered pursuant to Section 3(a) prior to the Third Release Date, and (z) the aggregate dollar amount disbursed to Parent and/or the Seller on the First Release Date and the Second Release Date, and (ii) any accrued interest thereon. (iv) On the first Business Day following the fourth (4th) anniversary of the date of this Agreement (the “Final Release Date”), the Escrow Agent shall disburse to Parent and/or the Seller all of the remaining Escrow Property less the sum of the aggregate dollar amount retained by the Escrow Agent for Losses asserted by the Buyer prior to the Final Release Date pursuant to Section 3(a) if, and then only to the extent that, such amount has not been disbursed to the Buyer pursuant to a Certificate of Instruction delivered pursuant to Section 3(a) prior to the Final Release Date; provided that any amounts not disbursed to Parent and/or the Seller on the Final Release Date shall be disbursed to Parent and/or the Seller (including accrued interest thereon) or the applicable portion thereofBuyer pursuant to a Certificate of Instruction delivered pursuant to Section 3(a) as directed by such Judgment. For purposes of this Agreement, “no later than two Business Day” shall mean any day that Days following the Escrow Agen is open for businessAgent’s receipt of such a Certificate of Instruction.

Claims and Payment; Release from Escrow. The Escrow Agent shall disburse the Escrow Property (or portions thereof) from time to time to Buyer or Seller as set forth in, and in accordance with, the joint written instructions of the Interested Parties, each (a) signed by an authorized representative At any time prior to 5:00 p.m. (Pacific Time) on the Business Day preceding the first anniversary of Buyer listed on Schedule B the date of this Agreement (such anniversary date being the “Release Date”), the Purchaser may deliver to the Escrow Agent and an authorized representative of Seller listed on Schedule Cthe Sellers written notice, (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and (c) substantially in the form attached hereto as Schedule D Exhibit A, of a claim for the distribution of some or all of the Escrow Funds (a “Joint InstructionsClaim”) in satisfaction of any claims of offset Purchaser may have under Section 8(h) of the Purchase Agreement, which states: (i) the facts giving rise to an alleged basis for the Claim; and (ii) the estimated dollar amount of the loss asserted against the Escrow Funds by reason of the Claim (the “Claimed Amount”). Joint Instructions provided The Escrow Agent shall pay to the Purchaser the amount of the Claimed Amount from the Escrow Funds on the date ten (10) Business Days (as defined below) after it receives such written Claim; provided, however, that the Escrow Agent shall not make such payment, if the Escrow Agent receives from the Sellers (with a copy to Purchaser) at least one (1) Business Day prior to such payment date a written notice stating the Sellers contest the Claim and a detailed description of the nature of the objection (an “Objection Notice”). If no such Objection Notice is received, the Sellers shall be deemed to waive any rights to object or contest the payment of the amount of the Claimed Amount to Purchaser from the Escrow Fund. If the Sellers give a timely Objection Notice to the Escrow Agent do not need that confirms the Claim solely to be included on the extent of an amount that is less than the Claimed Amount (the “Undisputed Amount”), then the Escrow Agent shall pay the Undisputed Amount to the Purchaser and retain the remainder of the Claimed Amount until the Escrow Agent receives a single documentResolution Notice (as defined below). Except as expressly directed in the foregoing sentence, and may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions with respect to any Claim regarding which the Sellers give a timely Objection Notice to the Escrow Property Agent (or portions thereofa “Disputed Claim”), the Escrow Agent shall promptly, but in not make any event within one (1) Business Day after further payment from the Escrow Funds until receipt of (i) written instructions signed by the Sellers and the Purchaser, or (ii) a Resolution Notice (as defined below) (either such document being referred to as a “Final Resolution”). The Interested Parties agree to use good faith, reasonable negotiations to resolve any Joint InstructionsDisputed Claim, disburse for a period of fifteen (15) days after the Escrow Property (or portions thereof) to delivery of an Objection Notice. If the party or parties set forth inDisputed Claim is resolved, and in accordance with, such Joint Instructions. Either Seller or Buyer may the Interested Parties shall deliver to the Escrow Agent, with a copy to the non-delivering Interested Party, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part of Agent written instructions for payment from the Escrow Property Funds, signed by the Sellers and the Purchaser. If the Disputed Claim is not so resolved, the Interested Parties agree to Seller or Buyer, finally resolve any Disputed Claim through binding arbitration as applicabledescribed in this paragraph. Within ten five (105) Business Days after the conclusion of the negotiation period described above, the Purchaser and the Sellers will then mutually select a single independent arbitrator to resolve the dispute as described below (the "Independent Arbitrator"). If the parties cannot agree on the identity of the Independent Arbitrator within five (5) Business Days of the date of receipt of the Objection Notice, then the Independent Arbitrator shall be determined by an arbitrator selected by the Purchaser and an arbitrator selected by the Sellers. Any dispute related to this Section 2(a) shall be resolved by binding expedited arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") in effect as of the date of the request for arbitration if filed (the "Rules"). The arbitration shall be held in San Francisco County, California or Orange County, California. Costs related to the Independent Arbitrator shall be borne equally between the Purchaser and the Sellers. Upon the final resolution of any Disputed Claim through the award of an arbitrator, as provided for below, directing delivery of the Escrow Funds, any Interested Party entitled to receive a payment from the Escrow Funds in accordance with such Judgment, award will deliver to the Escrow Agent and the other Interested Party a notice in the form attached hereto as Exhibit B (a “Resolution Notice”). The Escrow Agent shall disburse make payment from the Escrow Property Funds in accordance with any Resolution Notice within two (or the applicable portion 2) Business Days of receipt thereof) as directed by such Judgment. For purposes of this Agreement, “Business Day” shall mean any day that the Escrow Agen is open for business.

Claims and Payment; Release from Escrow. The Escrow Agent shall disburse the Escrow Property (or portions thereof) from time to time to Buyer or Seller as set forth in, and in accordance with, the joint written instructions of the Interested Parties, each (a) signed by an authorized representative Subject to the terms and provisions of Buyer listed on Schedule B the Demerger Agreement and an authorized representative of Seller listed on Schedule C, prior to the date that is twelve (b12) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and months following the Closing Date (c) substantially in the form attached hereto as Schedule D (“Joint InstructionsEscrow Distribution Date”). Joint Instructions provided , Purchaser may give notice (a “Notice of Claim”) to the Escrow Agent do not need specifying in reasonable detail, to be included on a single documentthe extent known by Purchaser, and the nature of, and, if practicable, the estimated Japanese yen amount of any Indemnity Claim it may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions have under the Demerger Agreement with respect to the Escrow Property, and the Escrow Agent shall, as soon as reasonably practicable following receipt of such Notice of Claim (but in no event later than two (2) Business Days thereafter), send a copy of such Notice of Claim to Seller, with a copy to Purchaser, stating the Escrow Agent’s intention to deliver the amount specified in such Notice of Claim to Purchaser. (i) At any time during the thirty (30) calendar days following receipt of a Notice of Claim from the Escrow Agent, Seller may notify the Escrow Agent in writing, with a copy to Purchaser, that the Indemnity Claim in the Notice of Claim, or any portion thereof, is disputed by Seller (such notice being hereinafter referred to as a “Dispute Notice”). If Seller does not deliver a Dispute Notice to the Escrow Agent by 5:00 pm New York time on the thirtieth (30th) calendar day following receipt of a Notice of Claim, then Seller shall be deemed to have acknowledged the correctness of such assertion for the full amount thereof as specified in such Notice of Claim and, upon receipt of written instructions executed by Purchaser, the Escrow Agent shall, as soon as practicable (but in no event later than two (2) Business Days thereafter), deliver to an account or accounts designated by Purchaser, only to the extent of the remaining amount of the Escrow Property, the amount specified in such Notice of Claim. (ii) Promptly upon receipt of a Dispute Notice (but in no event later than two (2) Business Days thereafter), Purchaser and Seller shall jointly deliver an instrument to the Escrow Agent containing instructions with respect to the release to Purchaser of such portion of the Escrow Property that is equal to the amount, if any, of the Indemnity Claim which is not disputed by Seller, and the Escrow Agent shall not distribute the amount of the Indemnity Claim which is disputed by Seller (the “Disputed Amount”). The Escrow Agent shall, as soon as practicable (but in no event later than two (2) Business Days thereafter), deliver to an account or portions thereofaccounts designated by Purchaser, only to the extent of the remaining amount of the Escrow Property, the amount specified in such instructions. (iii) Subject to Sections 9 – 11, the Interested Parties agree that all disputes that may arise under this Escrow Agreement between the Interested Parties with respect to the delivery, ownership, right of possession, and/or disposition of the Escrow Property or any portion thereof (including any Disputed Amount), shall be settled as between the Interested Parties either by (A) mutual agreement of the Interested Parties (evidenced by appropriate instructions in writing to the Escrow Agent, signed by both Interested Parties) (each a “Joint Agreement”) or (B) by final order, decree or judgment obtained in accordance with Section [12.8] of the Demerger Agreement, which order, judgment or decree is not subject to appeal (each a “Final Order”). Upon receipt of a Joint Agreement or Final Order to the effect that Purchaser is entitled to payment out of the Escrow Property, the Escrow Agent shall promptly, deliver as soon as practicable thereafter (but in any no event within one later than two (12) Business Day after receipt Days thereafter), to an account or accounts designated in writing by Purchaser, only to the extent of the remaining amount of the Escrow Property, the amount specified in such Final Order or Joint Agreement. The parties hereto agree that with respect to any order, judgment or decree received by the Escrow Agent pursuant to this Escrow Agreement, Escrow Agent (i) shall not be required to determine whether or not such order, judgment or decree is a Final Order within the foregoing definition and shall rely on the representation of any Joint Instructions, disburse the Escrow Property (party hereto that an order judgment or portions thereof) to the party or parties set forth in, and in accordance with, such Joint Instructions. Either Seller or Buyer may deliver decree that it is presenting to the Escrow AgentAgent is a Final Order and (ii) shall conclusively presume that any such order, judgment or decree received by it has been obtained in accordance with a copy Section [12.8] of the Demerger Agreement. (b) Notwithstanding anything to the non-delivering Interested Partycontrary contained herein, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part of on the Escrow Property to Seller or BuyerDistribution Date, as applicable. Within ten (10) Business Days after upon receipt of such Judgmentwritten instructions jointly executed by Seller and Purchaser, the Escrow Agent shall disburse release to Seller, by wire transfer of immediately available funds to an account or accounts designated in such joint written instructions, the remaining amount of the Escrow Property (the “Final Distribution Amount”), provided, however, that if, prior to the Escrow Distribution Date, Purchaser shall have given notice to the Escrow Agent of any Indemnity Claim for indemnification pursuant to this Section 3, and such claim or claims remain unpaid or in dispute as of the applicable Escrow Distribution Date (“Open Claims”), the Final Distribution Amount shall be equal to the Final Distribution Amount less the aggregate amount of the Open Claims. The Final Distribution Amount to be distributed in accordance with this Section 3(b) shall be set forth in the written instructions delivered by Seller and Purchaser pursuant to this Section 3(b). Upon resolution in favor of Seller, if any, as to the Open Claims, or any portion thereof) as directed by such Judgment. For purposes of this Agreement, “Business Day” shall mean any day that the Escrow Agen is open for businessAgent shall distribute as soon as practicable (but in no event later than two (2) Business Days thereafter) the amount representing the resolved portion of the Open Claims upon receipt of written instructions delivered by Seller and Purchaser pursuant to this Section 3(b).

Claims and Payment; Release from Escrow. The Escrow Agent shall disburse the Escrow Property (or portions thereof) from time to time to Buyer or Seller as set forth in, and in accordance with, the joint written instructions of the Interested Parties, each (a) signed by an authorized representative of Buyer listed If, at any time on Schedule B and an authorized representative of Seller listed on Schedule C, (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and (c) substantially in the form attached hereto as Schedule D (“Joint Instructions”). Joint Instructions provided or prior to the Escrow Release Notification Deadline, the Escrow Agent do not need to be included on receives the Release Notice from the Escrow Issuer (a single document, and may copy of which shall be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions with respect the Escrow Issuer to the Escrow Property (or portions thereofInitial Purchasers, Xxxxxx & Xxxxxxx LLP, the Initial Purchasers’ counsel, and the Trustee), the Escrow Agent will, as promptly as practicable on the same Business Day, release all Escrow Property (the “Release”) then held by it as directed and in the manner set forth in the Release Notice; provided that the Release Notice shall promptlybe received by the Escrow Agent by 11:00 a.m. local time in the City of New York on such Business Day. In the event that a Release Notice is received after 11:00 a.m. New York City time, the Escrow Agent shall use commercially reasonable efforts to disburse the Escrow Property on such date, but shall not be required to disburse the Escrow Property until the next succeeding Business Day. The Escrow Agent shall be fully protected in acting in reliance upon such Release Notice, and shall have no duty or obligation to determine whether such Release Notice complies with the terms of the Indenture. (b) In the event that (1) the Acquisition is not consummated on or prior to the applicable Outside Date, (2) the Escrow Agent shall not have received the Release Notice certifying that the Release conditions have been met at or prior to the Escrow Release Notification Deadline, or (3) at any time prior to the applicable Outside Date, the Merger Agreement is terminated (any such event being a “Special Mandatory Redemption Event”), the Escrow Issuer shall redeem all of the Notes (the “Special Mandatory Redemption”) at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date (as defined below). Notice of the occurrence of a Special Mandatory Redemption Event, substantially in the form of Annex II, will be delivered to the Trustee and the Escrow Agent by the Escrow Issuer (a “Special Redemption Notice”) within one Business Day following the occurrence of a Special Mandatory Redemption Event. Concurrently with the delivery of the Special Redemption Notice, the Escrow Issuer will instruct the Trustee to, at the Escrow Issuer’s expense, deliver, by first-class mail to each holder’s registered address or otherwise in accordance with the Depository Trust Company’s procedures, with a copy to the Escrow Agent, a Special Redemption Notice stating that a Special Mandatory Redemption will occur on a specified date, which shall be no earlier than one Business Day, but no later than two Business Days, after the Trustee’s delivery of such notice (the date of such redemption, the “Special Mandatory Redemption Date”). In the event that the Escrow Agent receives the Trustee’s Special Redemption Notice after 1:00 p.m. New York City time at least one (1) Business Day after receipt of any Joint Instructions, disburse the Escrow Property (or portions thereof) prior to the party or parties set forth in, and in accordance with, such Joint Instructions. Either Seller or Buyer may deliver to the Escrow Agent, with a copy to the non-delivering Interested Party, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part of the Escrow Property to Seller or Buyer, as applicable. Within ten (10) Business Days after receipt of such JudgmentSpecial Redemption Date, the Escrow Agent shall use commercially reasonable efforts to disburse the Escrow Property on the Special Mandatory Redemption Date, but shall not be required to disburse the Escrow Property until the next succeeding Business Day (which shall then become the Special Mandatory Redemption Date). (c) At any time prior to the Escrow Release Notification Deadline, the Escrow Issuer, may from time to time, provide an Outside Date Extension Notice in order to extend the Initial Outside Date (or, if the Outside Date has previously been extended, the Extended Outside Date then in effect), to a date as specified in such Outside Date Extension Notice by the Escrow Issuer that is not later than the six-month anniversary of the date the Notes are issued (such date, the “Extended Outside Date”). An Outside Date Extension Notice shall be effective only if (i) the required notice is given no later than the Escrow Release Notification Deadline, (ii) the Outside Date is extended in increments of no less than 30 days (unless the extension is until the then-applicable outside termination or similar date in the Merger Agreement); (iii) the then-applicable outside termination or similar date in the Merger Agreement is not later than such proposed Extended Outside Date; and (iv) concurrently with or prior to the delivery of such Outside Date Extension Notice, the Escrow Issuer (or the applicable portion thereofone or more of its affiliates) as directed by deposits an Additional Amount in respect of such Judgment. For purposes of this Agreement, “Business Day” shall mean any day that Outside Date Extension Notice in the Escrow Agen is open for businessAccount. The Escrow Agent shall be fully protected in acting in reliance upon such Outside Date Extension Notice, and shall have no duty or obligation to determine whether such Outside Date Extension Notice complies with the terms of the Indenture.

Claims and Payment; Release from Escrow. The Escrow Agent Shares shall disburse be released to the Escrow Property (or portions thereof) from time to time to Buyer or Seller applicable Interested Parties as set forth in, and in accordance with, the joint written instructions of the Interested Parties, each follows: (a) signed by Pursuant to the provisions of the Security Agreement, on each occasion on which the Noteholders’ Representative determines in good faith that the Company is in default or that an authorized representative event of Buyer listed on Schedule B and an authorized representative of Seller listed on Schedule Cdefault (a “Default”) has occurred under the Security Agreement, (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and (c) substantially in the form attached hereto as Schedule D (“Joint Instructions”). Joint Instructions provided Noteholders’ Representative may deliver to the Escrow Agent do and the Company a written request for the distribution of the Escrow Shares in accordance with Section 5(a) (a “Default Notice”), which notice shall describe in reasonable detail the facts giving rise to the Default, and a reference to the provision of the Security Agreement or any ancillary agreement upon which such claim of Default is based. (b) If, within twenty (20) days after the Noteholders’ Representative’s delivery of a Default Notice, Company does not need notify the Escrow Agent in writing (with a copy to the Noteholders’ Representative) that the Company objects in good faith to the Default (an “Objection”), the Escrow Agent shall promptly distribute the Escrow Shares as instructed in the Default Notice. (c) If, within twenty (20) days after the Noteholders’ Representative’s delivery of a Default Notice, the Company delivers to the Escrow Agent an Objection, the Escrow Agent shall not distribute the Escrow Shares as instructed in the Default Notice, pending either (i) joint written instructions from the Noteholders’ Representative and the Company specifying the agreement of the parties as to the action to be included on a single document, and may be provided by Seller and Buyer in separate counterparts. Upon receipt of Joint Instructions taken with respect to such Default (“Default Instructions”) or (ii) receipt by the Escrow Property Agent of a notice from the Noteholders’ Representative or the Company stating that such dispute has been submitted to a court of competent jurisdiction for judgment, and that a final judgment with respect to such matters has been rendered, which notice shall be accompanied by a copy of a final, non-appealable order of the court pursuant to which such court has determined whether and to what extent the Noteholders’ Representative is entitled to the Escrow Shares requested in such Default Notice, and a statement by the submitting party that such decision is final and non-appealable (such notice, decision and statement, collectively, a “Determination Order”). A copy of such Determination Order shall also be sent by the Noteholders’ Representative or portions thereof)the Company, as the case may be, to the other party concurrently with the delivery thereof to the Escrow Agent. (d) If the Escrow Agent has received Default Instructions or a Determination Order, and if such Default Instructions or Determination Order indicates that the Noteholders are entitled to distribution of the Escrow Shares set forth in the Default Notice, then the Escrow Agent shall promptly, but in any event within one five (15) Business Day business days after receipt of any Joint Instructionssuch receipt, disburse the distribute such Escrow Property (or portions thereof) to the party or parties Shares as set forth in, and in accordance with, Section 5(a). If such Joint Instructions. Either Seller Default Instructions or Buyer may deliver Determination Order indicates that the Noteholders are not entitled to the Escrow Agent, with a copy to the non-delivering Interested Party, a certified copy of a final non-appealable judgment or order of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part portion of the Escrow Property to Seller or BuyerShares, as applicable. Within ten (10) Business Days after receipt of such Judgment, then the Escrow Agent shall disburse hold the amount to which the Noteholders are determined not to be entitled in accordance with the terms of this Agreement until such amounts are to be (i) cancelled pursuant to Section 3(e) below, (ii) distributed to the Noteholders in respect of another Default Notice pursuant to Section 3(a) through 3(d), or (iii) distributed to the Noteholders, the Company or otherwise, in each case upon the receipt of joint written instructions from Company and Noteholders’ Representative. (e) To the extent not previously distributed to the Noteholders pursuant to this Section 3, the Escrow Property Shares shall be cancelled as set forth in Section 5(b) on the earlier of (or i) written confirmation from the applicable portion thereof) as directed by such Judgment. For purposes of this Agreement, “Business Day” shall mean any day Noteholders’ Representative and the Company that the Noteholders’ security interest in the Escrow Agen Shares has been terminated, and (ii) the date that is open for businesssix (6) months after the date hereof, unless any Default Notice theretofore delivered is then pending and unresolved, in which case the number of Escrow Shares relating to such Default Notice(s) which are still pending and unresolved as of such date shall be retained by the Escrow Agent (a “Retained Shares”), and the balance of the Escrow Shares shall be cancelled as set forth in Section 5(b). The Escrow Agent shall thereafter distribute or cancel the Retained Shares, as applicable, as and when it receives Default Instructions or a Determination Order, as applicable, relating to the Default, or, in the alternative, if it has not received an Objection within the allotted time pursuant to Section 3(b).

Claims and Payment; Release from Escrow. The Escrow Agent shall disburse the Escrow Property (or portions thereof) from time to time to Buyer or Seller as set forth in, and in accordance with, the joint written instructions of the Interested Parties, each (a) signed If a Registration Statement covering the resale of the Underlying Shares has not been declared effective by an authorized representative of Buyer listed on Schedule B and an authorized representative of Seller listed on Schedule C, the Commission by the Effectiveness Date (b) with respect to Buyer, confirmed by telephone callback as set forth on Schedule B, and with respect to Seller, confirmed by telephone callback as set forth on Schedule C, and (c) substantially defined in the form attached hereto as Schedule D (“Joint Instructions”Registration Rights Agreement). Joint Instructions provided , then the Purchasers and the Company shall countersign and deliver to the Escrow Agent do a copy of a written notice sent either by a Purchaser or by the Company to the other requiring the redemption of all (but not need less than all) of the Preferred Stock then held by the Purchasers (if such a notice has been sent). Such notice shall direct the Escrow Agent to be included on a single documentdeliver (i) the Escrow Funds to the Purchasers pro rata in accordance with their ownership of Preferred Stock, and may be provided by Seller (ii) the Shares and Buyer in separate counterpartsthe Warrants to the Company. Upon the receipt of Joint Instructions with respect such notice, the Escrow Agent shall deliver the Escrow Funds, the Shares and the Warrants as aforesaid by the close of business on the 2nd Trading Day following the date on which such copy of the notice is delivered. (b) If the Escrow Agent shall not have received a Holder Conversion Notice from each Purchaser or a Company Conversion Notice on or prior to 6:30 p.m. (New York City time) on the fifth Trading Day following the Settlement Date (which such Settlement Date the Interested Parties shall mutually confirm in writing to the Escrow Property (or portions thereofAgent once known), the Escrow Agent shall promptly, but in any event within one deliver (1i) Business Day after receipt of any Joint Instructions, disburse the Escrow Property (or portions thereof) Funds to the party Purchaser or parties set forth inPurchasers from whom a Holder Conversion Notice was not received pro rata in accordance with their ownership of Preferred Stock on the date of this Agreement), and (ii) the Shares and the Warrants to the Company. The Escrow Agent shall deliver the Escrow Funds, the Shares and the Warrants as aforesaid by the close of business on the 2nd Trading Day following the later of (i) the fifth Trading Day following the Settlement Date or (ii) the day on which the Interested Parties give the Escrow Agent written notice confirming the Settlement Date). (c) If the Escrow Agent shall have received a Holder Conversion Notice from one or more Purchasers or a Company Conversion Notice prior to the end of the fifth Trading Day following the Settlement Date (which such Settlement Date the Interested Parties shall mutually confirm in accordance with, such Joint Instructions. Either Seller or Buyer may deliver writing to the Escrow AgentAgent once known), and the Company shall have delivered to the Escrow Agent a certificate for the number of Underlying Shares being acquired upon the conversion of shares of Preferred Stock pursuant to each such Holder Conversion Notice or Company Conversion Notice (the "Common Stock certificate") (along with a copy to calculation showing the non-delivering Interested Party, a certified copy number of a final non-appealable judgment or order shares of a court of competent jurisdiction or a final non-appealable arbitration decision (each, a “Judgment”) awarding all or any part of the Escrow Property to Seller or Buyer, as applicable. Within ten (10) Business Days after receipt of such JudgmentPreferred Stock being converted), the Escrow Agent shall disburse prior to the close of business on 2nd Trading Day following the delivery of such Common Stock certificate, deliver (i) the Escrow Property Funds to the Company and, (or ii) the applicable portion thereof) as directed by such Judgment. For purposes Common Stock certificate and the Warrants to the Purchasers so converting pro rata in accordance with their ownership of this AgreementPreferred Stock; provided, “Business Day” shall mean any day however, that in the event that the aggregate number of Underlying Shares that would be issued to the Holders as a result of such conversion notices exceeds 3,000,000 shares (as reflected in a written summary signed by the Interested Parties), the excess of such number of shares over 3,000,000 shall be returned to the Company, and the Escrow Agen is open for businessAgent shall distribute to the Purchasers pro rata in accordance with their ownership of Preferred Stock (immediately prior to such conversion) Escrow Funds equal to the Stated Value of the Preferred Shares convertible into such excess Underlying Shares.