Common use of Claims Upon Escrow Fund Clause in Contracts

Claims Upon Escrow Fund. (a) In the event that any Buyer Indemnified Party has a Claim against the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreement, with a copy to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver to the Buyer Indemnified Party out of the Escrow Fund cash in an amount equal to the Damages as specified in the Claim Notice. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. (a) In Upon receipt by the event Escrow Agent on or before the Termination Date of a certificate signed by the chief financial or chief executive officer of Acquiror (an "Officer's Certificate"): (i) stating that any Buyer Indemnified Party Acquiror or the Surviving Corporation has incurred, paid or properly accrued (in accordance with GAAP) or knows of facts giving rise to a Claim against reasonable probability that it will have to incur, pay or accrue (in accordance with GAAP) Damages in an aggregate stated amount with respect to which Acquiror or the Company Surviving Corporation is entitled to payment from the Escrow Fund pursuant to this Agreement; and (ii) specifying in reasonable detail the individual items of Damages included in the amount so stated, the date each such item was incurred, paid or properly accrued (in accordance with GAAP), or the basis for such anticipated liability and the specific nature of the breach to which such Buyer Indemnified Party desires item is related, the Escrow Agent shall, subject to the provisions of Section 8.7 of this Agreement, deliver to Acquiror shares of Acquiror Common Stock, in an amount necessary to indemnify Acquiror for the Damages claimed; provided, however, that no shares of Acquiror Common Stock or cash shall be delivered to Acquiror, as a result of a claim based upon an accrual of, or upon a reasonable probability of having to incur, pay or accrue Damages until such time as the Acquiror has actually incurred or paid Damages. All cash and shares of Acquiror Common Stock subject to such claims shall remain in the Escrow Fund until Damages are actually incurred or paid or the Acquiror determines in its reasonably good faith judgment that no Damages will be required to be indemnified as provided incurred or paid (in which event such cash and shares shall be distributed to the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim Principal Stockholder in accordance with Section 4.7 of the Purchase Agreement, with a copy to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"8.10 below). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver to the Buyer Indemnified Party out of the Escrow Fund cash in an amount equal to the Damages as specified in the Claim Notice. (b) In case a Notice For the purpose of Objection is delivered compensating Acquiror for its Damages pursuant to the Indemnified Party in accordance with this Section 5Agreement, the Indemnified Party shall respond Acquiror Common Stock in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall valued as set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewithSection 8.2.

Claims Upon Escrow Fund. (ai) In Upon receipt by the event that any Buyer Indemnified Party has a Claim against Share Escrow Agent on or before the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 last day of the Purchase Agreement, with Escrow Period of a copy to certificate signed by any officer of Acquiror (a “Claims Notice”): (A) stating that Damages exist in an aggregate amount greater than the Escrow Agent, Indemnity Threshold; and (B) specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand individual items included in the amount of Damages in such claim, the date each such item was paid, properly accrued or arose and the nature of the dispute) misrepresentation, breach of warranty or claim to which such item is related, the basis of such position (Share Escrow Agent shall set aside Escrow Shares having a "Notice of Objection"), a copy of which is delivered value equal to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable Damages in excess of the Indemnity Threshold. (ii) Upon the earliest of: (A) receipt of written authorization from the Stockholders’ Agent or from the Stockholders’ Agent jointly with Acquiror to make such delivery, (B) receipt of written notice of a final decision in arbitration of the claim, or (C) in the event the claim set forth in the Claims Notice is uncontested by the Stockholders’ Agent as of the close of business on the next Business Day following the fifteenth (15th) day following receipt by the Share Escrow FundAgent of the Claims Notice; on the next Business Day, and the Share Escrow Agent shall deliver the Escrow Shares or the portion of Escrow Shares set aside pursuant to Section 7.07(d)(i) to Acquiror. (iii) For the Buyer Indemnified Party out purpose of compensating Acquiror for its Damages pursuant to this Agreement, the Escrow Shares in the Escrow Fund cash in shall be valued at the last reported sale price of an amount equal Acquiror Common Share on the NYSE on the Business Day prior to the Damages as specified in the Claim Noticedate such claim is paid. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. Upon receipt by the Escrow Agent at ----------------------- any time on or before the last day of the Escrow Period of a certificate signed by any officer of Zhone (aan "Officer's Certificate"): (A) In stating that a member --------------------- of the event Zhone Group has paid or properly accrued or reasonably anticipates that any Buyer Indemnified Party has a Claim against it will have to pay or accrue Zhone Losses, and (B) specifying in reasonable detail the Company individual items of Zhone Loss included in the amount so stated, the date each such item was paid or properly accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreementitem is related, the Indemnified Party shall notify Escrow Agent shall, subject to the Company provisions of such Claim in accordance with Section 4.7 this section, pay to Zhone out of the Purchase AgreementEscrow Fund, with a copy as promptly as practicable, an amount equal to such Zhone Losses. At the time of delivery of any Officer's Certificate to the Escrow Agent, specifying the nature a duplicate copy of such Claim and the amount or the estimated amount thereof certificate shall be delivered by Zhone to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within Shareholder Agent and for a period of thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claimdelivery, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver make no payment to the Buyer Indemnified Party out Zhone of any Escrow Amounts pursuant to this section unless the Escrow Fund cash in an amount equal Agent shall have received written authorization from the Shareholder Agent to make such delivery. After the Damages as specified in the Claim Notice. (b) In case a Notice expiration of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within such thirty (30) days andday period, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash make such payment from the Escrow Fund in accordance with this section, provided that no such payment may be made if the terms thereof. Shareholder Agent shall object in a written statement (cthe "Shareholders Agent ------------------ Notice") If to the parties do not resolve claim made in the dispute within Officer's Certificate, and such sixty statement ------ shall have been delivered to the Escrow Agent, with a copy to Zhone, prior to the expiration of such thirty (6030) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. (a) The Buyer and the Company Stockholders shall each designate in the Escrow Agreement a person to act as their respective representative under this Article VIII and the Escrow Agreement, such representative with respect to the Buyer, the “Indemnitee Representative” and with respect to the Company Stockholders, the “Indemnitor Representative”. (b) In the event that any Buyer Indemnified Party has order to make a Claim against upon the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase AgreementGeneral Escrow, the Indemnified Party Indemnitee Representative shall notify on or before the Company of such Claim in accordance with Section 4.7 last day of the Purchase AgreementGeneral Escrow Period deliver to the Escrow Agent, with a copy to the Indemnitor Representative, a General Escrow Claim Notice: (i) stating that with respect to the indemnification obligations of the Company Stockholders under this Agreement, Damages exist in an aggregate amount greater than Two Hundred Fifty Thousand Dollars ($250,000) (the “Deductible Amount”) (which aggregate amount cannot include any individual Damage items less than Twenty Five Thousand Dollars ($25,000)); and (ii) specifying that the Claim relates to the General Escrow and specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, the nature of the misrepresentation, breach of warranty or claim to which such item is related. (c) In order to make a Claim upon the Contracts Escrow, the Indemnitor Representative shall on or before the last day of the Contracts Escrow Period deliver to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof with a copy to the extent then feasible (the "Indemnitee Representative, a Contracts Escrow Claim Notice"). If . (d) In order to make a Claim upon the Company does not notify in writing Special Contract Escrow, the Buyer Indemnified Party within Indemnitee Representative shall on or before the last day of the Special Contract Escrow Period delivery to the Escrow Agent, with a copy to the Indemnitor Representative, a Special Contract Claim Notice. (e) The Indemnitor Representative shall have thirty (30) days after to respond to any General Escrow Claim Notice. If the date of delivery of Indemnitor Representative does not dispute the General Escrow Claim Notice that Notice, the Company disputes such Claim, with a statement in reasonable detail (to enable Indemnitee Representative and the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered Indemnitor Representative shall execute written authorization to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and Agent (a “Joint Written Direction”) authorizing the Escrow Agent shall to deliver to the Buyer Indemnified Party out of the Escrow Fund General Escrow, as promptly as practicable, a cash in an amount equal to such Damages with respect to the Damages as specified indemnification obligations of the Company Stockholders set forth in the Claim NoticeSection 8.1. (bf) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party The Indemnitee Representative shall respond in a written statement to the Notice of Objection within have thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such disputerespond to any Contracts Escrow Claim Notice. If the parties should so agreeIndemnitee Representative does not dispute the Contracts Escrow Claim Notice, the Indemnitee Representative and the Indemnitor Representative shall sign a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and Joint Written Direction authorizing the Escrow Agent shall be entitled to rely on deliver to the Certificate Company Stockholders out of Resolution and distribute the Contracts Escrow, as promptly as practicable, a cash from the Escrow Fund amount equal to such Claim, in accordance with the terms thereoftheir Percentage Interests. (cg) The Indemnitor Representative shall have thirty (30) days to respond to any Special Contract Claim Notice. If the parties do Indemnitor Representative does not resolve dispute the dispute within such sixty (60) day periodSpecial Contract Claim Notice, either party may demand arbitration the Indemnitor Representative and the Indemnitee Representative shall sign a Joint Written Direction authorizing the Escrow Agent to deliver to the Company Stockholders out of the matter unless Special Contract Escrow, as promptly as practicable a cash amount equal to such Claim. Upon the amount Buyer’s receipt of approval of the Damages is at issue Equitable Adjustment in pending litigation with an amount greater than or equal to the Equitable Adjustment Threshold, the Indemnitor Representative and the Indemnitee Representative shall sign a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree Joint Written Direction authorizing the Escrow Agent to arbitration. Any arbitration under this Section 5 shall be conducted deliver to the Company Stockholders in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments their Percentage Interests out of the Special Contract Escrow Fund in accordance herewithall funds remaining therein.

Claims Upon Escrow Fund. (a) In From time to time on or before the event that any Buyer Indemnified Party has Expiration Date (as defined below), Parent may submit a Claim against the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreement, with claim notice (a copy to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice") to the Stockholder Representative and the Escrow Agent specifying any claim it may have under Article VII of the Merger Agreement (a "Claim"). The Claim Notice shall state (i) a brief description of the circumstances supporting Parent's belief that there is or has been a Claim; and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise, either directly or indirectly. Parent may make more than one Claim with respect to any underlying state of facts. (b) If the Company does not notify in writing Stockholder Representative delivers written notice to Parent and the Buyer Indemnified Party Escrow Agent disputing any Claim (a "Counter Notice") within thirty (30) calendar days after the date of delivery following receipt of the Claim Notice that the Company disputes regarding such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from resolved as provided in Section 4(c). If no Counter Notice is received by Parent and the Escrow FundAgent within such 30-day period, then the amount of damages claimed by Parent as set forth in its Claim Notice (or in any revised Claim Notice delivered within such 30-day period based on the same underlying state of facts as the original Claim Notice) shall be deemed conclusively established for purposes of this Agreement and the Merger Agreement, and the Escrow Agent shall deliver distribute Escrow Shares to the Buyer Indemnified Party out of the Escrow Fund cash in an amount Parent equal to the Damages as specified amount claimed in the Claim Notice (or in the revised Claim Notice, as the case may be) from the Escrow Fund. If a revised Claim Notice is based upon the same underlying set of facts as the original Claim Notice, then the submission of a revised Claim Notice within the 30-day period set forth above in this paragraph shall not re-start such 30-day period, and instead, the initial 30-day period shall remain in effect. (bc) In case If a Counter Notice of Objection is timely delivered with respect to the Indemnified Party in accordance with this Section 5a Claim, the Indemnified Party Parent shall have fifteen (15) calendar days to respond in a written statement statement, but any failure of Parent to respond to a Counter Notice within such 15-day period shall not relieve the Notice Company Stockholders of Objection within thirty any liability which the Company Stockholders may have. If after the expiration of such fifteen (3015) days andcalendar day period, for sixty (60) days thereafterthere remains a dispute as to any Claim, the parties shall attempt in good faith for sixty (60) calendar days to resolve agree upon the rights of the respective parties with respect to such disputeClaim. If the parties should so agree, a memorandum (a "Certificate joint written instructions of Resolution") Parent and the Stockholder Representative setting forth such agreement shall be prepared and signed by both parties, parties and delivered to the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) Agent. If the parties do not resolve agree, than the dispute within such sixty shall be resolved either by (60i) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim arbitrator approved by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree (an "Arbitrator") to arbitration. Any arbitration under this Section 5 shall be conducted arbitrate the dispute in accordance with Section 7.6 the Commercial Arbitration Rules of the Purchase Agreement and the decision American Arbitration Association or (ii) a court of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitratorscompetent jurisdiction. The Escrow Agent shall be entitled make payment with respect to act any Claim pursuant to which a Counter Notice is delivered only in accordance with (i) joint written instructions of Parent and the Stockholder Representative (ii) a final written decision of an Award and make Arbitrator or withhold payments (iii) a final non-appealable order of a court of competent jurisdiction. (d) Any distribution of Escrow Shares to the Parent held in the Escrow Fund pursuant to this Section 4 shall be done on a pro rata basis calculated in accordance with the percentages set forth opposite the Company Stockholders' respective names on Exhibit A attached hereto (which percentages are identical to the proportion of the Company Stockholders' respective original contributions to the Escrow Fund as determined pursuant to Section 1.6 of the Merger Agreement). For the purposes of determining the number of Escrow Shares to be delivered to Parent out of the Escrow Fund pursuant to this Section 4, the Escrow Shares shall be valued at the Merger Share Price (as defined in accordance herewiththe Merger Agreement), which is $2.2821 per share. (e) Notwithstanding anything herein to the contrary, any and all calculations required to be made pursuant to this Section 4 shall be provided to the Escrow Agent by the party so requesting the distribution. (f) Parent's failure to give reasonably prompt notice to the Escrow Agent and Stockholder Representative of any actual, threatened or possible claim or demand which may give rise to a right of indemnification hereunder shall not relieve the Company Stockholders and SK of any liability which the Company Stockholders and SK may have to the Indemnified Party unless the failure to give such notice materially and adversely prejudiced the Company Stockholders and SK.

Claims Upon Escrow Fund. (a) In Upon receipt by the event that Escrow Agent of a certificate (a "CLAIM NOTICE") signed by any Buyer Indemnified Party has a Claim against the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 one of the Purchase Agreement, with officers of ADAC set forth on SCHEDULE B hereto providing notice of a copy to the Escrow Agent, claim for Losses and specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand date such Losses were paid or incurred or otherwise arose, the nature of the dispute) of the basis of misrepresentation or breach to which such position (a "Notice of Objection"), a copy of which is delivered to the Escrow AgentLosses are related, the dollar amount of such Claim shall Losses and the delivery instructions to be conclusively deemed indemnifiable from followed by Escrow Agent in paying out such claim, including without limitation any applicable wire transfer instructions of the payee and address to where a check should be sent, the Escrow Agent shall, subject to the provisions of Section 6(b) below, deliver pursuant to such instructions out of the Escrow Fund, and the Escrow Agent shall deliver to the Buyer Indemnified Party out of the Escrow Fund cash in as promptly as practicable, an amount equal to the Damages as specified indicated in the Claim Notice. (b) In case a Notice of Objection is delivered , equal to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitratorsLosses as indemnity. The Escrow Agent shall be entitled to act conclusively rely on such Claim Notice and shall make such distributions from the Escrow Fund only in accordance with an Award the terms thereof and the terms of this Escrow Agreement, including Section 6(b). (b) At the time of delivery of any Claim Notice to the Escrow Agent, a duplicate copy of such Claim Notice shall be delivered to the Sellers' Representative by ADAC and for a period of thirty (30) days after receipt of the Claim Notice by the Escrow Agent delivered in accordance with Section 11, the Escrow Agent shall make no delivery of the cash from the Escrow Fund pursuant to Section 6(a) above unless the Escrow Agent shall have received written authorization from the Sellers' Representative to make such delivery. After the expiration of such thirty (30) day period, the Escrow Agent shall, without further notice or withhold payments out authorization of any kind, make delivery of the amount of Losses from the Escrow Fund in accordance herewithwith Section 6(a) above, provided that no such payment or delivery shall be made to the extent the Sellers' Representative disputes in good faith the claim set forth in the Claim Notice pursuant to a written notice to the Escrow Agent and to ADAC received by each prior to the expiration of such thirty (30) day period, with the basis for such dispute set forth in reasonable detail. Thereafter, the Escrow Agent shall only disburse the disputed amount from the Escrow Fund (i) in accordance with the instructions of a written memorandum signed by ADAC and the Sellers' Representative, upon which the Escrow Agent shall be entitled to conclusively rely, or (ii) in accordance with the written decision of the arbitrators pursuant to Section 9.15 of the Merger Agreement delivered to the Escrow Agent, upon which the Escrow Agent shall be entitled to act.

Claims Upon Escrow Fund. (a) The Buyer and the Company Stockholder shall each designate in the Escrow Agreement a person to act as their respective representative under this Article VII and the Escrow Agreement, such representative with respect to the Buyer, the “Indemnitee Representative” and with respect to the Company Stockholder, the “Indemnitor Representative”. (b) In the event that any Buyer Indemnified Party has order to make a Claim against upon the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase AgreementGeneral Escrow, the Indemnified Party Indemnitee Representative shall notify on or before the Company of such Claim in accordance with Section 4.7 last day of the Purchase AgreementGeneral Escrow Period deliver to the Escrow Agent, with a copy to the Indemnitor Representative, a General Escrow Claim Notice: (i) stating that with respect to the indemnification obligations of the Company Stockholder under this Agreement, Damages exist in an aggregate amount greater than Two Hundred Fifty Thousand Dollars ($250,000) (the “Deductible Amount”) (which aggregate amount cannot include any individual Damage items less than Twenty Five Thousand Dollars ($25,000)); and (ii) specifying that the Claim relates to the General Escrow and specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, the nature of the misrepresentation, breach of warranty or claim to which such item is related. (c) In order to make a Claim upon the A/R Escrow, the Indemnitor Representative shall on or before the last day of the A/R Escrow Period deliver to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof with a copy to the extent then feasible (the "Indemnitee Representative, an A/R Escrow Claim Notice"). If . (d) In order to make a claim upon the Company does not notify in writing Contract Escrow, the Buyer Indemnified Party within Indemnitor Representative shall on or before the last day of the Contract Escrow period deliver to the Escrow Agent, with a copy to the Indemnitee Representative, a Contract Escrow Claim Notice. (e) The Indemnitor Representative shall have thirty (30) days after to respond to any General Escrow Claim Notice. If the date of delivery of Indemnitor Representative does not dispute the General Escrow Claim Notice that Notice, the Company disputes such Claim, with a statement in reasonable detail (to enable Indemnitee Representative and the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered Indemnitor Representative shall execute written authorization to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and Agent (a “Joint Written Direction”) authorizing the Escrow Agent shall to deliver to the Buyer Indemnified Party out of the Escrow Fund General Escrow, as promptly as practicable, a cash in an amount equal to such Damages with respect to the Damages as specified indemnification obligations of the Company Stockholder set forth in the Claim NoticeSection 7.1. (bf) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party The Indemnitee Representative shall respond in a written statement to the Notice of Objection within have thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such disputerespond to any A/R Escrow Claim Notice. If the parties should so agreeIndemnitee Representative does not dispute the A/R Escrow Claim Notice, the Indemnitee Representative and the Indemnitor Representative shall sign a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and Joint Written Direction authorizing the Escrow Agent shall be entitled to rely on deliver to the Certificate Company Stockholder out of Resolution and distribute the A/R Escrow, as promptly as practicable, a cash from the Escrow Fund in accordance with the terms thereofamount equal to such Claim. (cg) The Indemnitee Representative shall have thirty (30) days to respond to any Contract Escrow Claim Notice. If the parties do Indemnitee Representative does not resolve dispute the dispute within such sixty (60) day periodContract Escrow Claim Notice, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement Indemnitee Representative and the decision of Indemnitor Representative shall sign a Joint Written Direction authorizing the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of deliver to the Escrow Fund in accordance herewithCompany Stockholder the entire Contract Escrow, as promptly as practicable.

Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or before the Expiration Date of a certificate signed by the Seller’s Representative and any officer of Purchaser (athe “Purchaser Escrow Certificate”) In the event stating (i) that any Buyer Indemnified Party has a Claim against the Company for which such Buyer Indemnified Party desires to be indemnified Losses (as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreement, with a copy determined pursuant to the Escrow Agent, specifying the nature procedural requirements of such Claim Section 8.4 and the Escrow Agreement) exist in an aggregate amount or the estimated amount thereof to the extent then feasible greater than $100,000 and (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30ii) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable Losses that Purchaser is entitled to recover from the Escrow Fundeach Seller pursuant to Article VIII hereof, and the Escrow Agent shall deliver to the Buyer Indemnified Party Purchaser out of the Escrow Fund cash Fund, as promptly as practicable, such number of Escrow Shares (or other assets held in an amount the Escrow Fund) that have a value equal to such Losses Purchaser is entitled to recover. In satisfaction of any Seller’s indemnification obligations hereunder (other than in respect of a Defined Tax Liability, as provided in Section 8.7), at Seller’s option, in lieu of such delivery from the Damages as specified in Escrow Fund, or if the Expiration Date has passed, Seller may deliver to Purchaser directly shares of Purchaser Common Stock or cash having a value equal to such Losses Purchaser is entitled to recover pursuant to a Claim Notice. (b) In , unless the Indemnifying Party has objected to such claim pursuant to Section 8.4(b), in which case a Notice of Objection no delivery need be made until the claim is delivered to the Indemnified Party resolved in accordance with this the other provisions of Section 58.4. Further, Seller may not make any such election with respect to a claim during such time with respect to any Loss that is the Indemnified Party shall respond subject of a Claim Notice as to which the Sellers’ Representative has not objected pursuant to Section 8.4(b), but may determine in a written statement conjunction with the resolution of the claim in what manner it will satisfy its obligation to the Notice of Objection within thirty (30) days and, indemnify for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such disputeany Losses. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement Purchaser shall be prepared and signed by both parties, and required to proceed against the Escrow Agent shall be entitled Fund first for the recovery of Losses until the Escrow Fund has been exhausted in its entirety unless the Sellers’ Representative consents otherwise in writing. For the purpose of compensating Purchaser for any Losses pursuant to rely on the Certificate this Agreement, shares of Resolution and distribute cash Purchaser Common Stock (whether from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(sotherwise) shall be written and shall be supported by written findings valued at the Average Share Value per share on the date of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitratorsthis Agreement. The Escrow Agent shall be entitled not make any delivery if the Seller’s Representative has objected to act in accordance with an Award and make or withhold payments out such release pursuant to Section 8.4(b) until such objection has been resolved pursuant to the provisions of the Escrow Fund in accordance herewithSection 8.4.

Claims Upon Escrow Fund. (ai) In Upon receipt by the event that Escrow Agent at any Buyer Indemnified Party has time on or before the Survival Date of an Officer’s Certificate, or with respect to a Claim against matter set forth in a Reasonably Anticipated Losses Officer’s Certificate prior to the Company distribution of the Escrow Fund (and, in any case, on or before the expiration of the applicable survival periods for which such Buyer Indemnified Party desires the Specified Indemnity Items, as the case may be), the Escrow Agent shall, subject to be indemnified the provisions of Section 8.5 hereof and subject to final resolution of the claim as provided set forth herein, deliver to Parent, as promptly as practicable, by wire transfer to an account or accounts designated by Parent in the Purchase AgreementOfficer’s Certificate, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 an amount of the Purchase Agreement, with a copy to Escrow Funds from the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof Account equal to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from Losses set forth in the Escrow FundOfficer’s Certificate and finally resolved in accordance herewith. For the avoidance of doubt, and the Escrow Agent shall deliver to the Buyer Indemnified Party out in no case make a distribution or release of all or any portion of the Escrow Fund cash in an amount equal Funds to the Damages as specified in the Claim Notice. (b) In case Parent with respect to a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond matter set forth in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, Reasonably Anticipated Losses Officer’s Certificate unless a memorandum (a "subsequent Officer’s Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund is validly delivered in accordance with the terms thereofand conditions herein (including, without limitation, subject to the provisions of Section 8.5 hereof and subject to final resolution of the claim as set forth herein); provided, however, that such subsequent Officer’s Certificate need not be delivered on or before the Survival Date (or on or before the expiration of the applicable survival periods for the Specified Indemnity Items, as the case may be) so long as solely relating to the resolution of a claim made in a Reasonably Anticipated Losses Officer’s Certificate. (cii) If Subject to, in accordance with and as permitted by the parties do provisions of Sections 8.1, 8.3, 8.4 and 8.5, in the event that a Parent Indemnified Party pursues a claim directly against any Principal Stockholder, on a several and not resolve joint basis, or any other Person as permitted by this Article VIII, each Person from whom indemnification is sought (an “Indemnifying Party”) shall promptly, and in no event later than 30 days after delivery of an Officer’s Certificate to each such Indemnifying Party, wire transfer, to an account or accounts designated by the dispute within such sixty (60) day periodParent Indemnified Party in the Officer’s Certificate, either party may demand arbitration to the Parent Indemnified Party an amount of the matter unless cash equal to the amount of the Damages Loss set forth in such Officer’s Certificate that is at issue actually incurred or sustained and that is indemnifiable or recoverable hereunder. (iii) If the Stockholder Representative (or the Indemnifying Party in pending litigation with a third party the event that indemnification is being sought hereunder directly from such Indemnifying Party) does not object in writing to either the claim made in the Officer’s Certificate or is based on an asserted claim by a third partythe amount of Losses, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted each case in accordance with the provisions of Section 7.6 8.5, within the 30-day period after delivery by the Parent Indemnified Party of the Purchase Agreement and the decision Officer’s Certificate (with confirmation of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the awardreceipt), judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled such failure to act so object in accordance with the provisions of Section 8.5 shall be an Award irrevocable acknowledgment by the Stockholder Representative and make the Principal Stockholders (or withhold payments out such Indemnifying Party) that the Parent Indemnified Party is entitled to the full amount of the Escrow Fund Losses set forth in accordance herewithsuch Officer’s Certificate that are actually incurred or sustained and that are indemnifiable or recoverable hereunder.

Claims Upon Escrow Fund. (ai) In Upon receipt by the event Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Parent (an "Officer Certificate"): (A) stating that any Buyer Indemnified Party Parent has a Claim against paid or properly accrued or reasonably anticipates (ii) For purposes of determining the Company for which such Buyer Indemnified Party desires number of shares of Parent Common Stock to be indemnified as provided in delivered to Parent out of the Purchase AgreementEscrow Fund pursuant to Section 7.2(d)(i) hereof or to Securityholder Agent pursuant to either Section 7.2(b) or Section 7.2(e)(iv) hereof, the Indemnified Party shares of Parent Common Stock shall notify be valued at the Company of such Claim in accordance with Section 4.7 average of the Purchase Agreementclosing prices of Parent's Common Stock on the principal securities exchange on which Parent's Common Stock is then traded or if not so traded, with the National Market System of the National Association of Securities Dealers Automated Quotation system, in either case as reported in The Wall Street Journal for the five (5) consecutive trading days ending on the date that is one (1) trading day prior to the Closing Date. Parent and the Securityholder Agent shall certify such fair market value in a copy certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent. (iii) At the time of delivery of any Officer's Certificate to the Escrow Agent, specifying the nature a duplicate copy of such Claim and the amount or the estimated amount thereof certificate shall be delivered to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within Securityholder Agent and for a period of thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claimdelivery, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver make no delivery to the Buyer Indemnified Party out Parent of any Escrow Amounts pursuant to Section 7.2(d) hereof unless the Escrow Fund cash in an amount equal Agent shall have received written authorization from the Securityholder Agent to make such delivery. After the Damages as specified in the Claim Notice. (b) In case a Notice expiration of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within such thirty (30) days andday period, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate make delivery of Resolution and distribute cash shares of Parent Common Stock from the Escrow Fund in accordance with Section 7.2(d) hereof, provided that no such payment or delivery may be made if the terms thereof. Securityholder Agent shall object in a written statement to the claim made in the Officer's Certificate, and such statement shall have been delivered to the Escrow Agent prior to the expiration of such thirty (c) If the parties do not resolve the dispute within such sixty (6030) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. (a) In Subject to the event that any Buyer Indemnified Party has a Claim against terms of this Agreement and the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase respective Escrow Agreement, the Indemnified Party shall notify give written notice of a Claim (a “Notice of Claim”) to the Company of such Claim in accordance with Section 4.7 of respective Consonus Holders’ Agent or the Purchase AgreementSTI Holders’ Agent, as applicable, with a copy to the Escrow Agent, specifying promptly after the nature Indemnified Party becomes aware of the existence of any reasonably likely potential Claim. The Indemnified Party may submit a Notice of Claim at any time during the period commencing with the Effective Time and ending on the Escrow Expiration Date, but shall not be permitted to bring a Notice of Claim at any time after the Escrow Expiration Date (and any delivery or attempted delivery of a Notice of Claim after the Escrow Expiration Date shall be void and of no force or effect). Notwithstanding anything contained herein to the contrary, any Claims for Consonus Related Losses or STI Related Losses, as the case may be (collectively, “Losses”), specified in any Notice of Claim delivered to the respective Holders’ Agent prior to expiration of the Escrow Expiration Date shall remain outstanding until such Claims for Losses have been resolved or satisfied, notwithstanding the passage of the Escrow Expiration Date. Until the Escrow Expiration Date, no delay on the part of the Indemnified Party in delivering a Notice of Claim shall relieve any Consonus Holder or STI Holder (each an “Indemnifying Party”) from any of its respective obligations under this Article VII unless (and the amount or the estimated amount thereof then only to the extent then feasible that) the Indemnifying Party is prejudiced thereby. (b) With respect to Claims made against an Escrow Fund, upon receipt by the "Claim Notice"). If Escrow Agent on or before the Company does not notify in writing the Buyer Escrow Expiration Date of a certificate signed by any officer of an Indemnified Party within thirty (30an “Officer’s Certificate”) days after the date of delivery of the Claim Notice stating that the Company disputes such Claim, with a statement Losses exist and specifying in reasonable detail (to enable the Indemnified Party to understand individual items of such Losses included in the amount so stated, the date each such item was paid or the Loss was suffered, the nature of the dispute) misrepresentation, or breach of warranty or covenant to which such Loss is related, the Escrow Agent shall, subject to the provisions of Sections 7.7 and 7.8 below, deliver to the Company out of the basis Consonus Escrow Fund, or the STI Escrow Fund, as applicable, as promptly as practicable, Escrow Shares having a value (determined pursuant to Section 7.4(b) hereof) equal to such Losses, in accordance with the Escrow Agreement and this Article VII. The Company, Consonus or STI, as applicable, will simultaneously with the delivery of such position (a "Notice of Objection"), a copy of which is delivered the Officer’s Certificate to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver a copy thereof to the Buyer Indemnified Party out of the Escrow Fund cash in an amount equal to the Damages Consonus Holders’ Agent or STI Holders’ Agent, as specified in the Claim Noticeapplicable. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. (a) In the event that any Buyer Any Parent Indemnified Party has a Claim Person may make claims against the Company for which such Buyer Indemnified Party desires Escrow Fund hereunder by giving written notice thereof to be indemnified the Stockholders’ Agent as provided in the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreementsoon as reasonably practicable, with a copy to the Escrow Agent, on or before the last day of the Escrow Period by submitting a certificate signed by any officer of Parent (an “Officer’s Certificate”) specifying in reasonable detail all material information then available regarding the nature of such Claim claim, assertion, event or proceeding and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted, the amount and nature of Damages or potential Damages sought and the amount method and metrics used in calculation of such Damages. If indemnification is sought for a claim, assertion, event or proceeding by or in respect of any third party (a “Third Party Claim”), the estimated amount thereof Parent Indemnified Person shall give the Stockholders’ Agent, as applicable, written notice of such Third Party Claim as to which such Parent Indemnified Person may request indemnification hereunder, as soon as reasonably practicable after the time that such Parent Indemnified Person learns of such Third Party Claim. Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of an Officer’s Certificate, the Escrow Agent shall set aside a portion of the Escrow Fund equal to such Damages, but shall not release it unless otherwise permitted under Section 8.4(c) below. The failure of the Parent Indemnified Person to give notice as provided in this Section 8.4 shall not relieve the Company Stockholders from any liability except to the extent then feasible that they are actually and materially prejudiced by the failure or delay in giving such notice; provided, however, that this provision shall not apply to any failure of any Parent Indemnified Person to give notice prior to the end of the applicable survival period set forth in Section 8.3, which shall continue to act as a bar to recovery for indemnification under this Agreement. (b) In the "Claim Notice"). If event that the Company does not notify Stockholders’ Agent shall object in writing good faith to the Buyer indemnification of a Parent Indemnified Party Person in respect of any claim or claims specified in an Officer’s Certificate, the Stockholders’ Agent shall, within thirty (30) days after receipt of such Officer’s Certificate, deliver to the Parent Indemnified Person a notice to such effect (an “Objection Notice”), setting forth in reasonable detail the basis for such objection. Upon delivery of an Objection Notice, the Stockholders’ Agent and the Parent Indemnified Person shall, within the sixty (60) day period beginning on the date of delivery of such Objection Notice, attempt in good faith to agree upon the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature rights of the dispute) of the basis respective parties with respect to each of such position (a "Notice claims to which the Stockholders’ Agent shall have so objected. If the Stockholders’ Agent and the Parent Indemnified Person shall succeed in reaching agreement on their respective rights with respect to any of Objection")such claims, a copy of which is delivered they shall promptly prepare and execute joint instructions to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable Agent to no longer set aside funds or to release funds from the Escrow Fund, as described therein (“Joint Instructions”). In the event that the Parent Indemnified Person and the Stockholders’ Agent are unable to agree as to any particular item or items or amount or amounts identified in the Objection Notice, then each party shall be entitled to pursue its available remedies for resolving the claim for indemnification by submitting such dispute to a court of competent jurisdiction as set forth in Section 9.7. (c) Upon the earliest of: (i) receipt of written authorization from the Stockholders’ Agent or any Joint Instructions providing for the payment of Damages, (ii) receipt of written notice of an award in binding arbitration or final, non-appealable judicial determination of the claim and the amount of any Damages, or (iii) in the event the Damages set forth in the Officer’s Certificate is uncontested by the Stockholders’ Agent as of the close of business on the next Business Day following the thirtieth (30th) day following receipt by the Escrow Agent of the Officer’s Certificate, on the next Business Day the Escrow Agent shall deliver to the Buyer Indemnified Party out portion of the Escrow Fund cash in an amount to Parent equal to the Damages as specified in the Claim Noticeamount of such Damages. (bd) In case the event that a Notice of Objection is delivered Third Party Claim gives rise to the Indemnified Party an indemnification claim (other than any IP Claim and except as otherwise provided in accordance with this Section 55.9(b) (Tax Contests)), the Indemnified Stockholders’ Agent may elect, at its own expense, to assume and control the defense of such Third Party Claim on behalf of the Company Stockholders and any litigation resulting therefrom; provided that counsel for the Company Stockholders, who shall respond in a written statement to conduct the Notice defense of Objection within thirty (30) days andsuch claim or any litigation resulting therefrom, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed approved by both partiesthe Parent Indemnified Person (whose approval shall not unreasonably be withheld or delayed), and the Escrow Parent Indemnified Person may participate in such defense at the Parent Indemnified Person’s expense, which shall include counsel of its choice; provided further that, if the Stockholders’ Agent (i) does not elect to defend, compromise or settle a Third Party Claim within fourteen (14) days of receiving notice thereof, or (ii) having elected to defend a Third Party Claim, fails to retain counsel to prosecute the action within fourteen (14) days of such election, then in such case the Parent Indemnified Person shall have the right to defend such Third Party Claim on behalf of and for the account and risk of the Company Stockholders. The Stockholders’ Agent shall be entitled to rely on not settle or compromise any Third Party Claim without the Certificate prior written consent of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day periodParent, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration consent shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitratorsunreasonably withheld. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out not disburse any portion of the Escrow Fund to any third party except in accordance herewithwith a Joint Instruction. (e) In case of any Third Party Claim involving an IP Claim, the provisions of Section 8.4(d) shall not apply, and instead Parent may elect to assume and control the defense of such Third Party Claim and any litigation resulting therefrom; provided that counsel for Parent, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Stockholders’ Agent (whose approval shall not unreasonably be withheld or delayed), and the Stockholders’ Agent may participate in such defense on behalf of the Company Stockholders (at its expense), which shall include counsel of its choice; provided further that, if Parent (i) does not elect to defend, compromise or settle such Third Party Claim within fourteen (14) days of receiving notice thereof, or (ii) having elected to defend such Third Party Claim, fails to retain counsel to prosecute the action within fourteen (14) days of such election, then in such case the Stockholders’ Agent shall have the right to defend such Third Party Claim. Parent shall not settle or compromise any Third Party Claim without the prior written consent of the Stockholders’ Agent, which consent shall not be unreasonably withheld. The Escrow Agent shall not disburse any portion of the Escrow Fund to any third party except in accordance with a Joint Instruction. (f) No Parent Indemnified Person shall be deemed to have unreasonably withheld its consent to any such proposed settlement or compromise that contains any term that does not consist entirely of a monetary payment and that does not include an unconditional release from all liability without future obligation or liability on the part of the Parent Indemnified Person and its Affiliates without any admission of guilt, liability or wrongdoing on the part of any Parent Indemnified Person. If a Parent Indemnified Person refuses to consent to a bona fide offer of settlement which the Stockholders’ Agent, on behalf of the Company Stockholders, wishes to accept and which provides solely for monetary payment and includes an unconditional release from all liability without future obligation or prohibition on the part of the Parent Indemnified Person and does not contain an admission of guilt, liability or wrongdoing on the part of the Parent Indemnified Person and such settlement has no adverse effect on the reputation of such Parent Indemnified Person, the Parent Indemnified Person may continue to pursue such matter, free of any participation by the Stockholders’ Agent, at the sole expense of the Parent Indemnified Person. However, in such event, the obligation of the Company Stockholders shall be limited to the amount of the offer of settlement which the Parent Indemnified Person refused to accept. (g) The Stockholders’ Agent and the Parent Indemnified Persons shall cooperate with each other in all reasonable respects in connection with the defense of any claim, including making available records relating to such claim and furnishing such employees of the Parent Indemnified Person and its affiliates as may be reasonably necessary for the preparation of the defense of any such claim or for testimony as witnesses in any proceeding relating to such claim. In defending or settling any Third Party Claim, Parent shall not be deemed to be an agent of, and shall have no duty, including, without limitation, any fiduciary duty, duty of loyalty, duty of good faith or duty of disclosure, to the Company Holders or the Stockholders’ Agent.

Claims Upon Escrow Fund. (a) In the event that any Buyer SVG Indemnified Party (an "INDEMNIFIED PARTY") has a Claim against the Company Seller for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company Seller of such Claim in accordance with Section 4.7 Article VII of the Purchase Agreement, with a copy to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim NoticeCLAIM NOTICE"). If the Company Seller does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company Seller disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of ObjectionNOTICE OF OBJECTION"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow FundAccount, and the Escrow Agent shall deliver to the Buyer SVG Indemnified Party out of the Escrow Fund Amount cash in an amount equal to the Damages as specified in the Claim Notice. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of ResolutionCERTIFICATE OF RESOLUTION") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 9.7 of the Purchase Agreement and the decision of the arbitrator(s) arbitrators shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "AwardAWARD") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. (a) In the event that any Buyer SVG Indemnified Party (an "Indemnified Party") has a Claim against the Company Seller for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase Agreement, the Indemnified Party shall notify the Company Seller of such Claim in accordance with Section 4.7 Article VII of the Purchase Agreement, with a copy to the Escrow Agent, specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company Seller does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company Seller disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow FundAccount, and the Escrow Agent shall deliver to the Buyer SVG Indemnified Party out of the Escrow Fund Amount cash in an amount equal to the Damages as specified in the Claim Notice. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent shall be entitled to rely on the Certificate of Resolution and distribute cash from the Escrow Fund in accordance with the terms thereof. (c) If the parties do not resolve the dispute within such sixty (60) day period, either party may demand arbitration of the matter unless the amount of the Damages is at issue in pending litigation with a third party or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 9.7 of the Purchase Agreement and the decision of the arbitrator(s) arbitrators shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewith.

Claims Upon Escrow Fund. (a) In Upon receipt by the event Escrow Agent on or before the Termination Date of a certificate signed by any officer of Parent (an "Escrow Officer's Certificate"): (i) stating that any Buyer Indemnified Party has a Claim Damages exist in an aggregate amount greater than the Indemnity Basket for claims against the Company for which such Buyer Indemnified Party desires to be indemnified as provided in the Purchase AgreementEscrow Fund, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreement, with a copy to the Escrow Agent, and (ii) specifying the nature of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery of the Claim Notice that the Company disputes such Claim, with a statement in reasonable detail (to enable the Indemnified Party to understand individual items included in the amount of Damages in such claim, the date each such item was paid, properly accrued or arose and the nature of the dispute) misrepresentation, breach of warranty or claim to which such item is related, the basis Escrow Agent shall set aside such number of shares of Parent Common Stock, such position (a "Notice amount of Objection"cash, or such combination thereof, as determined pursuant to Section 11.2(d), having a copy of which is delivered value equal to the Escrow Agent, the amount of such Claim shall be conclusively deemed indemnifiable from the Escrow Fund, and the Escrow Agent shall deliver to the Buyer Indemnified Party out of the Escrow Fund cash in an amount equal to the Damages as specified in the Claim NoticeDamages. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the The Escrow Agent shall be entitled deliver such number of shares of Parent Common Stock, such amount of cash, or such combination thereof, as determined pursuant to rely on Section 11.2(d), having a value equal to the Certificate amount of Resolution and distribute cash Damages claimed from the Escrow Fund to Parent as soon as practicable following the earliest of: (i) receipt of written authorization from the Company to make such delivery; (ii) receipt of written notice of a final decision or order of a court of competent jurisdiction of the claim; or (iii) the close of business on the thirtieth (30th) day following receipt by the Escrow Agent of an Escrow Officer's Certificate to which the Company has not objected in accordance with the terms thereofSection 11.5. (c) If The Escrow Fund shall be the parties do not resolve sole and exclusive source of recovery for the dispute within such sixty (60) day period, either party may demand arbitration indemnity claims of the matter unless the amount Parent Indemnified Parties under Section 11.2(a)(i) (other than for intentional and willful breach of covenants or a breach of the Damages is at issue representations and warranties in pending litigation with a third party Sections 3.2, 3.24 or is based on an asserted 4.2), subject to the provisions of Section 11.2(b). (d) The Parent Indemnified Parties may not assert any claim by a third party, directly against the Company (as opposed to through recourse to the Escrow Fund) or the Principal Stockholder unless and until it has reasonably determined in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of good faith that the Escrow Fund shall not satisfy all then-existing and unsatisfied claims. The Parent Indemnified Parties may not actually recover any indemnification claims against the Principal Stockholder unless it also has reasonably determined in accordance herewithgood faith that the Escrow Fund and the resources of the Company shall not satisfy all then-existing and unsatisfied claims.

Claims Upon Escrow Fund. Upon receipt by the Escrow Agent of a certificate signed by any officer of Parent (aan "OFFICER'S CERTIFICATE"): (A) In stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, (B) specifying in reasonable detail the event that any Buyer Indemnified Party has a Claim against individual items of Losses included in the Company amount so stated, the date each such item was paid or properly accrued, or the basis for such anticipated liability, and either the nature of the misrepresentation, breach of warranty or claim or the litigation matter to which such Buyer Indemnified Party desires item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(h) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable, such amounts held in the Escrow Fund equal to such Losses. If the Escrow Fund is comprised of Parent Common Stock, the number of shares of Parent Common Stock to be indemnified paid out by the Escrow Agent pursuant to this Article VII shall be determined by the Escrow Agent based on the closing bid price of Parent Common Stock on the Closing Date as provided in quoted on NASDAQ (the Purchase Agreement, the Indemnified Party shall notify the Company of such Claim in accordance with Section 4.7 of the Purchase Agreement, with a copy to "ESCROW PRICE"). Upon request by the Escrow Agent, specifying the nature a duly authorized officer of such Claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Company does not notify in writing the Buyer Indemnified Party within thirty (30) days after the date of delivery shall deliver a certificate of the Claim Notice Escrow Price. Parent shall not be entitled to receive any disbursement with respect to any Losses arising in respect of any individual occurrence or circumstance unless the aggregate amount of all Losses shall exceed $200,000; provided, however, that (i) in the Company disputes such Claim, with a statement in reasonable detail (to enable event the Indemnified Party to understand the nature of the dispute) of the basis of such position (a "Notice of Objection"), a copy of which is delivered to the Escrow Agent, the aggregate amount of such Claim Losses of Parent shall be conclusively deemed indemnifiable from the Escrow Fundexceed $200,000, and the Escrow Agent shall deliver to the Buyer Indemnified Party out of the Escrow Fund cash in an amount equal to the Damages as specified in the Claim Notice. (b) In case a Notice of Objection is delivered to the Indemnified Party in accordance with this Section 5, the Indemnified Party shall respond in a written statement to the Notice of Objection within thirty (30) days and, for sixty (60) days thereafter, the parties shall attempt in good faith to resolve such dispute. If the parties should so agree, a memorandum (a "Certificate of Resolution") setting forth such agreement shall be prepared and signed by both parties, and the Escrow Agent then Parent shall be entitled to rely on the Certificate of Resolution and distribute cash recover from the Escrow Fund only Losses in accordance with excess of $200,000 and (ii) the terms thereof. foregoing limitation shall not apply to (cx) If any adjustments to the parties do not resolve Merger Consideration to be made pursuant to Section 1.13(a) and Section 1.13(b) of this Agreement, (y) any reduction in the dispute within such sixty (60) day period, either party may demand arbitration Escrow Amount due to the failure of the matter unless the amount condition to close contained in Section 6.3(i) of the Damages is at issue this Agreement or (z) any amounts in pending litigation with a third party respect of Distributor Losses or is based on an asserted claim by a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration. Any arbitration under this Section 5 shall be conducted in accordance with Section 7.6 of the Purchase Agreement and the decision of the arbitrator(s) shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order (an "Award") determined by the arbitrators. The Escrow Agent shall be entitled to act in accordance with an Award and make or withhold payments out of the Escrow Fund in accordance herewithIdentified Litigation Losses.