Common use of Claims Upon Escrow Fund Clause in Contracts

Claims Upon Escrow Fund. (i) 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 Parent (an "Officer Certificate"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Common Stock on the Nasdaq National Market for the five (5) consecutive trading days ending five (5) trading days prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) 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 Parent (an "Officer CertificateOFFICER'S CERTIFICATE"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Common Stock held in the Escrow Fund in an amount equal to the Secured Portion of such Losses. (ii) For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Parent's Common Stock on the Nasdaq principal securities exchange on which Parent's Common Stock is then traded, or if not so traded, 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 thirty (530) consecutive trading days ending five on the date that is two (52) trading days prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or before the last day of during the Escrow Period of a Claim in the form of a certificate signed by any officer of Parent Purchaser (an a "Officer CertificateClaim"): ): (Aii) stating that Parent an Indemnified Person has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and Damages; and (Biii) specifying in reasonable detail the individual items of Losses Damages 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 item is relatedrelated and, to the extent known, a reasonable summary of the facts underlying the Claim; and provided that no objection is received from Seller or Rakepoll Finance in accordance with Section 8.2(e), the Escrow Agent shall, subject to the provisions of Section 7.2(f8.2(e) hereof, deliver to Parent out of the Escrow FundPurchaser, as promptly as practicable following expiration practicable, a number of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock Shares held in the Escrow Fund in an amount equal to such LossesDamages (the "Delivery"). (iiiv) For the purposes of determining the number of shares of Parent Common Stock Escrow Shares to be delivered to Parent out of the Escrow Fund Purchaser pursuant to Section 7.2(d)(i) 8.2 hereof, the shares of Parent Common Stock Escrow Shares shall be valued at the average of the closing prices price of Parent SICOR Common Stock on the Nasdaq National Market for the five (5) 20 consecutive trading days ending five (5) on the trading days day immediately prior to the Closing Date. Parent and date of the Securityholder Agent Delivery, Settlement Memorandum (as defined belowhereinafter defined) or Award (as hereinafter defined), as applicable. Purchaser and Seller shall certify such fair market value in a certificate signed by both Parent on behalf of Purchaser and the Securityholder Agent, Seller and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) 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 Parent (an "Officer Officer's Certificate"): (A) stating that Parent has paid or --------------------- properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Parent's Common Stock on the Nasdaq principal securities exchange on which Parent's Common Stock is then traded, or if not so traded, 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 five on the date that -------------- is two (52) trading days prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or before 5:00 p.m. California time on the last day of the Escrow Period Expiration Date of a certificate signed by any officer of Parent Purchaser (an "Officer Officer's Certificate"): (A) stating that Parent Purchaser has paid or properly accrued or reasonably anticipates that it will have to pay or accrue LossesLosses and specifying an aggregate amount thereof, and (B) specifying in reasonable detail the individual items of Losses 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 item is relatedrelated and to the extent known a reasonable summary of the facts underlying the claim, and if no objection is received from the Shareholders' Representative in accordance with Section 8.2(e), the Escrow Agent shall, subject to the provisions of Section 7.2(f8.2(e) hereof, deliver to Parent Purchaser out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Purchaser Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For the purposes of determining the number of shares of Parent Purchaser Common Stock to be delivered to Parent out of the Escrow Fund Purchaser pursuant to Section 7.2(d)(i8.2(d)(i) hereof, the shares of Parent Purchaser Common Stock shall be valued at the average of the closing prices of Parent Purchaser Common Stock on the Nasdaq National Market for the five (5) consecutive trading days ending five (5) trading days prior to the Closing DateAverage Price. Parent and the Securityholder Agent (as defined below) Purchaser shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, Purchaser and shall deliver such certificate to the Escrow AgentAgent at the time the Escrow Agreement shall be executed.

Claims Upon Escrow Fund. (i) 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 Parent (an "Officer CertificateOFFICER'S CERTIFICATE"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Parent's Common Stock on the Nasdaq principal securities exchange on which Parent's Common Stock is then traded, or if not so traded, 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 five on the date that is two (52) trading days prior to the Closing Datedate on which such shares are delivered from the Escrow Fund. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) 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 the chief executive officer of Parent SERENA (an "Officer “Officer’s Certificate"): ”) (A) stating that Parent SERENA has paid or properly accrued incurred or reasonably anticipates has a reasonable factual basis to believe that it will have incur Losses; (B) stating the dollar amount of such paid, incurred, or reasonably anticipated Losses; (C) the number of Escrow Shares and/or the amount of cash to pay or accrue Lossesbe retained, subject to Sections 1.3(e) and (Bf) hereof, in the Escrow Fund to satisfy such Loss; (D) the XXXXXX Xxxxx Per Share (as defined below) used to determine clause (C) above; and (E) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or properly accruedincurred, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is relatedrelated (including specific identification of the misrepresentation, breach of warranty or covenant of the StarTool Agreement to which the Loss relates). Upon the expiration of the forty-five (45) day period specified in Section 1.3(e) hereof, and provided that Escrow Agent has not received notice of a Disputed Claim in accordance with Section 1.3(e) hereof, the Escrow Agent shall, subject to the remaining provisions of Section 7.2(f) 1.3 hereof, deliver to Parent SERENA out of the Escrow Fund, as promptly as practicable following expiration Fund the number of the 30-day period shares of SERENA Common Stock specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent Officer’s Certificate, such shares to make be allocated among ** as set forth in such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such LossesOfficer’s Certificate. (ii) For the purposes of determining the number of shares of Parent SERENA Common Stock to be delivered to Parent SERENA out of the Escrow Fund pursuant to Section 7.2(d)(i1.3(d)(i) hereof, the shares of Parent SERENA Common Stock shall be valued at a per share price (the “XXXXXX Xxxxx Per Share”) equal to average of the closing prices of Parent Common Stock on the Nasdaq National Market price at market close for the five ten (5) consecutive trading days ending five (510) trading days prior to the Closing Datedate of the Officers’ Certificate. (iii) Fractional shares of SERENA Common Stock need not be issued, nor shall payments be made in lieu of fractional interests. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder AgentAccordingly, and shall deliver such certificate each Officer’s Certificate delivered to the Escrow AgentAgent pursuant to clause (d)(i) shall round up Losses so that an even number of shares, valued at the XXXXXX Xxxxx Per Share set forth in such Officer’s Certificate, may be allocated to such Losses.

Claims Upon Escrow Fund. (i) 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 the chief executive officer of Parent SERENA (an "Officer Officer's Certificate"): ) (A) stating that Parent SERENA has paid or properly accrued incurred or reasonably anticipates has a reasonable factual basis to believe that it will have incur Losses; (B) stating the dollar amount of such paid, incurred, or reasonably anticipated Losses; (C) the number of Escrow Shares and/or the amount of cash to pay or accrue Lossesbe retained, subject to Sections 1.3(e) and (Bf) hereof, in the Escrow Fund to satisfy such Loss; (D) the XXXXXX Xxxxx Per Share (as defined below) used to determine clause (C) above; and (E) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or properly accruedincurred, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is relatedrelated (including specific identification of the misrepresentation, breach of warranty or covenant of the StarTool Agreement to which the Loss relates). Upon the expiration of the forty-five (45) day period specified in Section 1.3(e) hereof, and provided that Escrow Agent has not received notice of a Disputed Claim in accordance with Section 1.3(e) hereof, the Escrow Agent shall, subject to the remaining provisions of Section 7.2(f) 1.3 hereof, deliver to Parent SERENA out of the Escrow Fund, as promptly as practicable following expiration Fund the number of the 30-day period shares of SERENA Common Stock specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent Officer's Certificate, such shares to make be allocated among ** as set forth in such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such LossesOfficer's Certificate. (ii) For the purposes of determining the number of shares of Parent SERENA Common Stock to be delivered to Parent SERENA out of the Escrow Fund pursuant to Section 7.2(d)(i1.3(d)(i) hereof, the shares of Parent SERENA Common Stock shall be valued at a per share price (the "XXXXXX Xxxxx Per Share") equal to average of the closing prices of Parent Common Stock on the Nasdaq National Market price at market close for the five ten (5) consecutive trading days ending five (510) trading days prior to the Closing Datedate of the Officers' Certificate. (iii) Fractional shares of SERENA Common Stock need not be issued, nor shall payments be made in lieu of fractional interests. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder AgentAccordingly, and shall deliver such certificate each Officer's Certificate delivered to the Escrow AgentAgent pursuant to clause (d)(i) shall round up Losses so that an even number of shares, valued at the XXXXXX Xxxxx Per Share set forth in such Officer's Certificate, may be allocated to such Losses.

Claims Upon Escrow Fund. (i) 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 Parent NEON (an "Officer Officer's Certificate"): (A) stating that Parent NEON has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f) hereof, deliver cause the transfer agent of NEON Company Stock to Parent transfer to NEON out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent NEON Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For the purposes of determining the number of shares of Parent NEON Common Stock to be delivered to Parent NEON out of the Escrow Fund pursuant to Section 7.2(d)(i7.2(e)(i) hereof, the shares of Parent NEON Common Stock shall be valued at the average closing price of the closing prices of Parent NEON's Common Stock on the Nasdaq National Market for the five eighteen (518) consecutive trading days ending five (5) on the third trading days day immediately prior to the Closing Date, as reported on the Nasdaq National Market. Parent NEON and the Securityholder Agent (as defined below) Shareholder Representative shall certify such fair market value in a certificate signed by both Parent NEON and the Securityholder AgentShareholder Representative, and shall deliver such certificate to the Escrow Agent, who may rely on it without inquiry.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent Depositary Agent, at any time on or before the last day of the Escrow Period Period, but (in the case of a certificate signed breaches of representations or warranties) in each case prior to the Expiration Date, of an Officer's Certificate delivered by any officer of Parent (an "Officer Certificate"): Buyer: (A) stating that Parent Buyer has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, directly or indirectly, as a result of any inaccuracy or breach of any representation, warranty, covenant or agreement of the Company 47 55 contained herein (provided that, in the case of any such breach of covenant or agreement by the Company, such breach occurred prior to the Effective Time) and (B) specifying in reasonable detail the individual items of Losses 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, misrepresentation or breach of warranty warranty, agreement or covenant to which such item is relatedrelated (including the specific provision breached) (or specifying the Company Cash Deficiency, if applicable), the Escrow Depositary Agent shall, subject to the provisions of Section 7.2(f) hereof, deliver to Parent Buyer out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Buyer Common Stock held in the Escrow Fund in an amount equal to any such Losses. Losses as they are actually incurred (ii) or equal to the Company Cash Deficiency, if applicable). For the purposes of determining the number of shares of Parent Buyer Common Stock to be delivered to Parent Buyer out of the Escrow Fund pursuant to this Section 7.2(d)(i7.2(e) hereofwith respect to any Losses incurred, the shares each share of Parent Buyer Common Stock shall be valued at as follows. If the Buyer Common Stock is then listed on any stock exchange or included on any automated quotation system, such value shall be the average closing price or average last sale price, as applicable, of the closing prices of Parent Buyer Common Stock on the Nasdaq National Market for the five ten (5) consecutive trading days ending five (510) trading days prior immediately preceding the date on which such shares are delivered to Buyer out of the Escrow Fund. If the Buyer Common Stock is not then listed on any stock exchange or included on any automated quotation system, such value shall be as agreed by Buyer and the Seller Representative or, if they cannot agree, Buyer and the Seller Representative shall each select a nationally recognized accounting or valuation firm, and each firm so selected shall select a third firm, and the value shall be determined by the mutual agreement of such firms. Upon the calculation or determination of the value of Buyer Common Stock in accordance with this Section 7.2(e), Buyer and the Shareholder Representative shall deliver written instructions, signed by each of them, to the Closing Date. Parent Depositary Agent setting forth such value and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and calculation of the Securityholder Agent, and shall deliver such certificate number of shares of Buyer Common Stock to the Escrow Agentbe delivered to Buyer.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or before 5:00 p.m. Palo Alto, California time on the last day of the Escrow Period of a certificate signed in good faith by any officer of Parent (an "Officer “Officer’s Certificate"”): (A) stating that Parent has paid or properly accrued or reasonably anticipates anticipated that it will have to pay or accrue LossesLosses that are indemnifiable under Section 7.2, and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was paid or properly accrued, accrued or the basis for such reasonably anticipated liability, that it will have to pay or accrue and the nature of the misrepresentation, breach of warranty or covenant or other item to which such item is relatedrelated (including the relevant section number of the Agreement) and the facts underlying such claim, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.3(f) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the practicable, Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock Shares and Escrow Cash held in the Escrow Fund in an satisfaction of such claim. Distributions out of the Escrow Fund in satisfaction of any claim pursuant to this Section 7.3(e) shall be subject to the following provisions and limitations: (i) The dollar amount equal of distributions shall be allocated between Escrow Cash and Escrow Shares as follows: (X) the Escrow Cash distribution shall be the product of 0.3515986 times the claim amount, and (Y) the Escrow Shares distribution shall be the product of 0.0399016 times the claim amount, and such distribution shall, for purposes of determining the satisfaction of the Indemnified Parties’ rights under this Article 7, be deemed to such Lossesbe a distribution with respect to 100% of the amount of the claim. (ii) For purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund Distributions shall, as applicable pursuant to Section 7.2(d)(i) hereof7.2, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Common Stock on the Nasdaq National Market for the five (5) consecutive trading days ending five (5) trading days prior subject to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow AgentDeductible Amount.

Claims Upon Escrow Fund. Subject to the objection procedure established in Section 7.2(F) below, the Escrow Agent shall deliver to AmeriNet out of the Escrow Fund, as promptly as practicable, shares of AmeriNet Common Stock or other assets held in the Escrow Fund in an amount equal to Losses by AmeriNet, provided that (i1) Upon receipt A written claim of loss has been provided by AmeriNet to the Escrow Agent at any time on or before the last day of the Escrow Period in the form of a certificate signed by any officer of Parent AmeriNet (an "Officer Officer's Certificate"): ), with a copy to Vista Vacations: (Aa) stating Stating that Parent AmeriNet has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and and (Bb) specifying Specifying in reasonable detail the individual items of Losses 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 claim to which such item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.2(F) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day period, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii2) For the purposes of determining the number of shares of Parent AmeriNet Common Stock to be delivered to Parent AmeriNet out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof7.2(E)(1), the shares of Parent AmeriNet Common Stock shall be valued at the average of closing transaction price therefor during the closing prices of Parent preceding ten trading days, as reported on the highest rated securities market or securities exchange on which AmeriNet's Common Stock on the Nasdaq National Market for the five (5) consecutive trading days ending five (5) trading days prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agentis actually traded.

Claims Upon Escrow Fund. (i) Upon receipt by If the Escrow Agent receives at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Parent (an "Officer CertificateOFFICER'S CERTIFICATE"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue LossesLosses caused directly or indirectly by any inaccuracy or breach of a representation or warranty of the Company contained in Article II hereof (as modified by the Company Schedules, without giving effect to any update thereto), or any failure by the Company to perform or comply with any covenant contained herein, and (B) specifying in reasonable detail the individual items of such Losses 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 item is relatedrelated and the facts underlying the claim, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Common Stock held in the Escrow Fund in an amount equal to any such LossesLosses incurred or accrued by Parent. (ii) For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares each share of Parent Common Stock shall be valued at the average of the closing prices of Parent Parent's Common Stock on the principal securities exchange on which Parent's Common Stock is then traded, or if not so traded, The Nasdaq National Market Market, in either case as reported in THE WALL STREET JOURNAL for the five twenty (520) consecutive trading days ending five on the date that is one (51) trading days day prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time before 5:00 p.m. California time on or before the last day of the Escrow Period Expiration Date of a certificate signed by any executive officer of Parent Parent, with a copy delivered to the Securityholder Agent (an "Officer “Officer’s Certificate"”): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue LossesLosses and specifying an aggregate amount thereof, and (B) specifying in reasonable detail the individual items of Losses 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 item is relatedrelated and to the extent known a reasonable summary of the facts underlying the claim, and if no objection is received from the Securityholder Agent in accordance with Section 9.2(h) hereof, the Escrow Agent shallwill, subject to the provisions of Section 7.2(fSections 9.2(a) and 9.2(h) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Common Stock cash held in the Escrow Fund in an amount equal to such Losses. . Parent may also deliver to the Escrow Agent from time to time an Officer’s Certificate related to collection of the AR Shortfall. If the Escrow Fund is insufficient to satisfy all Losses and the AR Shortfall, Parent will be entitled to recover from each of the Securityholders set forth on Schedule 9.2(g) up to such Securityholder’s pro rata interest and maximum liability set forth on Schedule 9.2(g). The liability of the Securityholders listed on Schedule 9.2(g) shall be settled by cash payment by the Securityholders to Parent; provided, however, that after the Securityholders have settled a total cumulative aggregate of all claims in an amount equal to ninety percent (ii90%) For purposes of determining the number of maximum liability set forth on Schedule 9.2(g), a Securityholder may use vested shares of Parent Common Stock to be delivered to Parent out settle the remainder of any such claims if the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the Securityholder still possesses vested shares of Parent Common Stock shall be received pursuant to this Agreement, with such Parent Common (on a per share basis) valued at the average of Average Closing Price, but to the closing prices extent such vested shares of Parent Common Stock on are not sufficient to settle all claims above the Nasdaq National Market first ninety percent (90%), the Securityholder will settle the claims in cash. The maximum aggregate amount of Losses, including amounts for the five (5) consecutive trading days ending five (5) trading days prior AR Shortfall, for which the Securityholders will be liable for claims made hereunder will be an amount equal to the Closing Date. Parent Aggregate Purchase Price, and no Securityholder shall be liable for claims made hereunder in in excess of such Securityholder’s pro rata interest, provided that only the Securityholder Agent (as defined belowSecurityholders set forth on Schedule 9.2(g) shall certify be personally liable for amounts in excess of the Escrow Fund. To the extent any amounts related to the collection of the AR Shortfall is recovered by Parent after Parent has received such fair market value in a certificate signed by both amount from the Escrow Fund, Parent and will return such amount, less the Securityholder Agentcost paid to outside companies for collecting such AR Shortfall, and shall deliver such certificate to the Escrow AgentAgent to be placed back into the Escrow Fund or, if such amount is collected by Parent after the termination of the Escrow Fund, Parent will remit such amount, less the cost paid to outside companies for collecting such AR Shortfall, pro rata to the stockholders.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time before 5:00 p.m. California time on or before the last day of the Escrow Period Expiration Date of a certificate signed by any executive officer of Parent (an "Officer “Officer’s Certificate"”): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue LossesLosses and specifying an aggregate amount thereof, and (B) specifying in reasonable detail the individual items of Losses 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 item is relatedrelated and to the extent known a reasonable summary of the facts underlying the claim, and if no objection is received from the Securityholder Agent in accordance with Section 9.2(f), the Escrow Agent shall, subject to the provisions of Section 7.2(f9.2(f) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, cash and/or shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) . The Securityholder Agent shall have the responsibility to determine the mix of cash and shares of Parent Common out of the Escrow Fund to be delivered to Parent hereunder. For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of pursuant to this Section 9.2(e) from the Escrow Fund pursuant to Section 7.2(d)(i) hereofFund, the shares of Parent Common Stock shall be valued at the average of the closing prices per share of Parent Common Stock on the Nasdaq National Principal Market for the five thirty (530) consecutive trading days ending five on the date that is two (52) trading days prior to the Closing Datedate such shares shall be delivered to Parent. Parent and the The Securityholder Agent shall (as defined belowi) shall determine the number of shares of Parent Common, if any, to be delivered to Parent from the Escrow Fund pursuant to this Section 9.2(e), (ii) certify such the fair market value of such shares in a certificate signed by both the Securityholder Agent and Parent and the Securityholder Agent, and shall (iii) deliver such certificate to the Escrow Agent. Parent shall only be entitled to recover up to One Million Five Hundred Thousand Dollars ($1,500,000) of cash and shares of Parent Common from the Escrow Fund without the written consent of the Securityholder Agent.

Claims Upon Escrow Fund. (i) 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 Parent (an "Officer CertificateOFFICER'S CERTIFICATE"): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is related, the Escrow Agent shall, subject to the provisions of Section 7.2(f7.2(e) hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For the purposes of determining the number of shares of Parent Common Stock to be delivered to Parent out of the Escrow Fund pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common Stock shall be valued at the average of the closing prices of Parent Parent's Common Stock on the Nasdaq principal securities exchange on which Parent's Common Stock is then traded, or if not so traded, 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 five on the date that is two (52) trading days prior to the Closing Date. Parent and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.

Claims Upon Escrow Fund. (i) Upon receipt by the Escrow Agent at any time on or before 5:00 p.m. California time on the last day of the Escrow Period Expiration Date of a certificate signed by any officer of Parent Incyte (an "Officer Officer's Certificate"): ): (A) stating that Parent Incyte has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses 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 item is relatedrelated and to the extent known a reasonable summary of the facts underlying the claim, and if no objection is received from the Securityholder Agent in accordance with Section 9.2(f), the Escrow Agent shall, subject to the provisions of Section 7.2(f9.2(f) hereof, deliver to Parent Incyte out of the Escrow Fund, as promptly as practicable following expiration of the 30-day period specified in Section 7.2(e) or after the Escrow Agent shall have received written authorization from the Securityholder Agent to make such delivery if such authorization is given prior to the end of the 30-day periodpracticable, shares of Parent Incyte Common Stock held in the Escrow Fund in an amount equal to such Losses. (ii) For the purposes of determining the number of shares of Parent Incyte Common Stock to be delivered to Parent out of the Escrow Fund pursuant Incyte to Section 7.2(d)(i9.2(e)(i) hereof, the shares of Parent Incyte Common Stock shall be valued at the average of the closing prices per share of Parent Incyte Common Stock on the Nasdaq National Market for the five ten (510) consecutive trading days ending five on the date that is three (53) trading days prior to the Closing Date. Parent Incyte and the Securityholder Agent (as defined below) shall certify such fair market value in a certificate signed by both Parent Incyte and the Securityholder Agent, and shall deliver such certificate to the Escrow Agent.