Common use of Delivery by Electronic Book Clause in Contracts

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12, 2007, by and among the Company, the Placement Agents and Mellon Investor Services LLC (the “Escrow Agent”): Mellon Bank ABA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”), of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares Securities purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12February 24, 20072014, by and among the Company, the Placement Agents and Mellon Investor Services LLC Continental Stock Transfer & Trust Company (the “Escrow Agent”): Mellon Bank JX Xxxxxx Cxxxx 4 Xxxxx Xxxx Xxxxxx Xxxxxxxx, XX 00000 ABA ## 000000000 Swift Code: 000000000 chasus33 Account Name: Mellon Continental Stock Transfer & Trust Co. AAF ClearSign Combustion Corp. Account Number: 530-158396 REF: (Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 Name) Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors each Investor to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Representative, of the Company Closing Conditionsconditions set forth in Section 3.3 hereof. The Placement Agents Representative shall have no rights in or to any of the escrowed funds, unless Citigroup the Representative and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 3.4 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Representative a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12November 28, 2007, by and among the Company, the Placement Agents and Mellon Investor Services LLC American Stock Transfer & Trust Company (the “Escrow Agent”): Mellon Escrow Agent: American Stock Transfer and Trust Company Bank ABA #: 000000000 Account Name: Mellon Investor Services LLC Account JPMorgan/Chase ABA # : 0000000 F/C AVI BioPharma F/C021 000 021 Cust A/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 323 062 539 A/C Name American Stock Transfer and Trust Company as Escrow Agent for Citizens, Inc. Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditionsclosing conditions set forth in Section 3.2(a) hereof. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee, as set forth in the Placement Agreement. The Company and the Investor severally and not jointly agree to shall indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of, or a material breach of the Escrow Agreement by, the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 127, 20072005, by and among the Company, the Placement Agents and Mellon Investor Services LLC Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP (the “Escrow Agent”): Mellon Bank THE CITIBANK PRIVATE BANK 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 ABA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Account Name: GTC Biotherapeutics, Inc. Account Number: 00000000 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agents, and shall have the right to continue to represent the Placement Agents, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agents by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one three (13) business day days after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12February 24, 20072006, by and among the Company, the Placement Agents and Mellon Investor Services LLC U.S. Bank National Association (the “Escrow Agent”): Mellon Bank: U.S. Bank ABA #National Association ABA: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma FA/C/C # 28912 Attn: Xxxx Xxxxx Tel 180121167365 BNF: 000-000-0000 U.S. Bank Trust N.A. OBI: Trust Fin Mgmt Ref: TranSwitch Corporation Escrow #793064010 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agents, and shall have the right to continue to represent the Placement Agents, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agents by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities Shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12March , 20072005, by and among the Company, the Placement Agents and Mellon Investor Services LLC Xxxxxxx XxXxxxxxx LLP (the “Escrow Agent”): Mellon Bank ABA Citibank, F.S.B. Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxxxxxxx, XX 00000 Acct: IOLTA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Acct Name: X.X. Xxxxxxx/8x8 Xxxxxxx XxXxxxxxx Ref: Client/Matter No. 2024497 / 0000312972 Domestic Wires: ABA Routing #000-000-000 International Wires: Swift Number - XXXXXX00 The Investor hereby authorizes the Escrow Agent to release such funds in accordance with the terms of the Escrow Agreement and to take such other actions as provided therein. Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors Investor to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold that: (i) the Escrow Agent harmless shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by it to be genuine and against to have been signed or presented by the proper party or parties; (ii) the Escrow Agent shall not be personally liable for any act it may do or omit to do hereunder as escrow agent while acting in good faith and in the exercise of its own good judgment, and any act done or omitted by it pursuant to the advice of its legal counsel and other experts shall be conclusive evidence of such good faith; (iii) the Escrow Agent is hereby expressly authorized to disregard any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to warnings given by any of the funds held in escrow pursuant parties hereto or arising under the Escrow Agreementby any other person or company, unless it is finally determined that such Losses resulted directly from the willful misconduct excepting only orders or gross negligence process of the Escrow Agent. Anything in this Agreement courts of law, and are hereby expressly authorized to the contrary notwithstandingcomply with and obey orders, in no event shall the Escrow Agent be liable for any special, indirect judgments or consequential loss or damage decrees of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).court; and

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares and Warrants purchased by such Investor through delivery by electronic book-entry at DTC, (i) in the case of Firm Shares, no later than one (1) business day Business Day after the execution of this Agreement by the Investor and the CompanyCompany and (ii) in the case of Option Shares, no later than one (1) Business Day after the delivery of the Option Notice by the Investor to the Company and the Placement Agent, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities Shares and Warrants being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12August ___, 20072005, by and among the Company, the Placement Agents Agent and Mellon Investor Services LLC Bxxxx Raysman Mxxxxxxxx Xxxxxx & Sxxxxxx LLP (the “Escrow Agent”): Mellon Bank THE CITIBANK PRIVATE BANK 100 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 ABA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Account Name: Superconductor Technologies Inc. Account Number: 30000000 Such funds shall be held in escrow in an interest bearing account until the respective Closing Date and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agent, of the Company Closing ConditionsConditions and the acceptance by the Company of the subscription. The Placement Agents Agent shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agent and the Escrow Agent are notified in writing by the Company in connection with the First Closing or any Option Closing, as the case may be, that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 2.4 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agent a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agent, and shall have the right to continue to represent the Placement Agent, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agent by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12May 4, 2007, by and among the Company, the Placement Agents and Mellon Investor Services LLC JPMorgan Chase Bank, N.A. (the “Escrow Agent”): Mellon JX Xxxxxx Cxxxx Bank ABA #: ABA# 000000000 Account Name: Mellon Investor Services LLC Account Credit Acct# : 0000000 F304880876 Spectrum/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 Oppenheimer Escrow Ref:______________________ Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of, or a material breach of the Escrow Agreement by, the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12June 7, 2007, by and among the Company, the Placement Agents and Mellon Investor Services LLC XX Xxxxxx Chase Bank, N.A. (the “Escrow Agent”): Mellon Bank ABA #: 000000000 Account XXXxxxxx Xxxxx Xxxx, XX XXX#000 000 021 A/C#304 950 068 A/C Name: Mellon Investor Services LLC Account # : 0000000 FAuxilium Pharm/C AVI BioPharma FX. Xxxxxx Partners/C/C # 28912 Banc of America Securities Attn: Xxxx Xxxxx Tel : 000-000-0000 Such funds shall be held in escrow in an a non-interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the ““ Escrow Agreement”) dated as of December 12July 18, 20072006, by and among the Company, the Placement Agents and Mellon Investor Services LLC U.S. Bank National Association (the “Escrow Agent”): Mellon U.S. Bank ABA #No.: 000000000 Account NameCorporate Trust Services Acct. No.: Mellon Investor Services LLC Account # 173103321050 Ref: 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 GTC Therapeutics Subscription Escrow Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 126, 20072006, by and among the Company, the Placement Agents Agent and Mellon Investor Services LLC The Bank of New York (the “Escrow Agent”): Mellon Bank of New York ABA #: No. 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/CGLA 111-565 Cust A/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 102209 A/C Name Oppenheimer/Acacia Research Corporation Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agent, of the Company Closing Conditions. The Placement Agents Agent shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agent and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agent a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agent, and shall have the right to continue to represent the Placement Agent, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agent by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities Shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12May 2, 2007, by and among the Company, the Placement Agents Agent and Mellon Investor Services LLC Law Debenture Trust Company of New York (the “Escrow Agent”): Mellon Bank Law Debenture Trust Company of New York Citibank N.A. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 ABA #: # 000000000 Account Name# 00000000 Ref: Mellon Investor Services LLC Account # : 0000000 FProgen Escrow A/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 79019 Such funds shall be held in escrow in an a non-interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agent, of the Company Closing Conditions. The Placement Agents Agent shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agent and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agent a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12October 11, 20072005, by and among the Company, the Placement Agents and Mellon Investor Services LLC Xxxxxxxxxx Xxxxxxx PC (the “Escrow Agent”): Mellon PNC Bank ABA New Jersey ABA#: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Account Name: Xxxxxxxxxx Xxxxxxx PC Attorney Trust Account Account #: 8025720166 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors Investor to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditionsconditions set forth in Section 2.2(b) hereof. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 2.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agents, and shall also furnish have the right to Citigroup a completed W-9 form (orcontinue to represent the Placement Agents, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the case Offering, and Investor hereby consents thereto and waives any objection to the continued representation of an Investor who is not a United States citizen the Placement Agents by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or resident, a W-8 form)obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12September 14, 20072006, by and among the Company, the Placement Agents and Mellon Investor Services LLC XX Xxxxxx Xxxxx Bank, N.A. (the “Escrow Agent”): Mellon Bank ABA #: 000000000 Account XXXxxxxx Xxxxx Xxxx, XX XXX#000 000 021 A/C#304 898 937 A/C Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Auxilium Pharm Attn: Xxxx Xxxxx Tel : 000-000-0000 Xxxxxx Such funds shall be held in escrow in an a non-interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form).

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities Shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 1213, 20072005, by and among the Company, the Placement Agents Agent and Mellon Investor Services LLC Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP (the “Escrow Agent”): Mellon Bank THE CITIBANK PRIVATE BANK 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 ABA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Account Name: Discovery Laboratories, Inc. Account Number: 00000000 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agent, of the Company Closing Conditions. The Placement Agents Agent shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agent and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agent a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agent and shall have the right to continue to represent the Placement Agent, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agent by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities Shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “"Escrow Agreement”") dated as of December 12March ___, 20072005, by and among the Company, the Placement Agents and Mellon Investor Services LLC Xxxxxxx XxXxxxxxx LLP (the “"Escrow Agent”"): Mellon Bank ABA Citibank, F.S.B. Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxxxxxxx, XX 00000 Acct: IOLTA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Acct Name: X.X. Xxxxxxx/8x8 Xxxxxxx XxXxxxxxx Ref: Client/Matter No. 2024497 / 0000312972 Domestic Wires: ABA Routing #000-000-000 International Wires: Swift Number - XXXXXX00 The Investor hereby authorizes the Escrow Agent to release such funds in accordance with the terms of the Escrow Agreement and to take such other actions as provided therein. Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors Investor to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally agree that: (i) the Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) the Escrow Agent shall not jointly be personally liable for any act it may do or omit to do hereunder as escrow agent while acting in good faith and in the exercise of its own good judgment, and any act done or omitted by it pursuant to the advice of its legal counsel and other experts shall be conclusive evidence of such good faith; (iii) the Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or company, excepting only orders or process of courts of law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any court; and (iv) should any dispute arise with respect to the delivery and/or ownership or rights of possession of the escrowed funds held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed to retain in its possession without liability to anyone all or any part of said funds until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree, or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. The Company and the Investor agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“"Losses”") arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form), if requested. Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agents, and shall have the right to continue to represent the Placement Agents, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering or otherwise, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agents by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities Units being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 12October 26, 20072006, by and among the Company, the Placement Agents Agent and Mellon Investor Services LLC Bxxxx Raysman Mxxxxxxxx Xxxxxx & Sxxxxxx LLP (the “Escrow Agent”): Mellon Bank THE CITIBANK PRIVATE BANK 600 Xxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 ABA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Account Name: Critical Therapeutics, Inc. Account Number: 009967564480 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors each Investor to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agent, of the Company Closing Conditionsconditions set forth in Section 3.3 hereof. The Placement Agents Agent shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agent and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 3.4 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agent a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agent, and shall have the right to continue to represent the Placement Agent, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agent by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.

Delivery by Electronic Book. Entry at The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor through delivery by electronic book-entry at DTC, no later than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase price for the Securities shares being purchased by the Investor to the following account (the “Escrow Account”) designated by the Company and the Placement Agent Agents pursuant to the terms of that certain Escrow Agreement (the “"Escrow Agreement”") dated as of December 12January 27, 20072005, by and among the Company, the Placement Agents and Mellon Investor Services LLC Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP (the “"Escrow Agent”"): Mellon Bank THE CITIBANK PRIVATE BANK 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 ABA #: 000000000 Account Name: Mellon Investor Services LLC Account # : 0000000 F/C AVI BioPharma F/C/C # 28912 Attn: Xxxx Xxxxx Tel : 000-000-0000 000 Account Name: Vasogen Inc. Account Number: 00000000 Such funds shall be held in escrow in an interest bearing account until the Closing and delivered by the Escrow Agent on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Citigroup Global Markets Inc. (“Citigroup”)the Placement Agents, of the Company Closing Conditions. The Placement Agents shall have no rights in or to any of the escrowed funds, unless Citigroup the Placement Agents and the Escrow Agent are notified in writing by the Company in connection with the Closing that a portion of the escrowed funds shall be applied to the Agency Placement Fee. The Company and the Investor severally and not jointly agree to indemnify and hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and claims (including, without limitation, court costs and reasonable attorneys fees) (“"Losses”") arising under this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Investor shall also furnish to Citigroup the Placement Agents a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8 form). Investor acknowledges that the Escrow Agent acts as counsel to the Placement Agents, and shall have the right to continue to represent the Placement Agents, in any action, proceeding, claim, litigation, dispute, arbitration or negotiation in connection with the Offering, and Investor hereby consents thereto and waives any objection to the continued representation of the Placement Agents by the Escrow Agent in connection therewith based upon the services of the Escrow Agent under the Escrow Agreement, without waiving any duty or obligation the Escrow Agent may have to any other person.