Common use of Distribution of the Escrow Shares Clause in Contracts

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 PT based on the following formula: (a) In the event the Company achieves at least 95% of the Performance Threshold, all of the Escrow Shares shall be returned to the Principal Stockholder. (b) If the Company achieves less than 95% of the applicable Performance Threshold, the Purchasers shall receive in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% of the Escrow Shares for each full percentage point by which the Performance Threshold was not achieved, not to exceed the total number of Escrow Shares initially deposited. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal Stockholder. No later than five (5) business days after delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative, the Company and the Purchaser Representative shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructions. Notwithstanding anything to the contrary set forth in this Agreement, (i) if Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, and (ii) the Purchaser Representative shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date), by notice given to the Purchaser Representative no later than one (1) business day after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, dispute the calculation of the 2011 PT and/or the Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. If the Company does not achieve the 2011 PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 2009 PT and the 2010 PT based on the following formula: (a) In the event the Company achieves at least 95% of the applicable Performance Threshold, all of the Escrow Shares for the corresponding fiscal year shall be returned to the Principal Stockholder. (b) If the Company achieves less than 95% of the applicable Performance Threshold, the Purchasers shall receive in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser Purchasers as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% 63,954 shares of the Escrow Shares for each full percentage point by which the applicable Performance Threshold was not achieved, not achieved up to exceed the total number of Escrow Shares initially deposited. (c) Escrow Shares not distributed to for the Purchasers shall be returned to the Principal Stockholderapplicable fiscal year. No later earlier than five (5) and no later than ten (10) business days after delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative’s delivery to each of the Purchasers of the Proposed Disbursement Materials pursuant to Section 1.4 hereof, the Company and the Purchaser Representative shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructionscalculations above. Notwithstanding anything to the contrary set forth in this Agreement, (i) if Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, Purchasers who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, date and (ii) the Purchaser Representative shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date), by notice given to the Purchaser Representative no later than one five (15) business day days after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) 1.4 hereof, dispute the calculation of the 2011 2009 PT, the 2010 PT and/or the Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. If the Company does not achieve the 2011 2009 PT or the 2010 PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 2009 Annual Report or the Fiscal Year 2010 Annual Report, as applicable, to the Purchaser Representative.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 PT based on the following formula: (a) In Parent, acting through at least two (2) members of the event Committee, may make a claim for indemnification pursuant to the Merger Agreement (“Indemnification Claim”) against the Escrow Account by giving notice in the form attached hereto as Exhibit A (a “Notice”) to the Company achieves at least 95% of the Performance Threshold, all of Representative (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Merger Agreement which it asserts has been breached or otherwise entitles Parent to indemnification, (ii) in reasonable detail, the nature and dollar amount of any Indemnification Claim, (iii) whether the Indemnification Claim results from a Third Party Claim against Parent or Company and (iv) the number of Escrow Shares shall to be returned delivered to the Principal StockholderParent in respect of such Indemnification Claim. (b) If the Company achieves less than 95% Representative gives a notice in the form attached hereto as Exhibit B to the Escrow Agent in accordance with Section 9.2 of the applicable Performance ThresholdMerger Agreement (with a copy to the Committee) (a “Counter Notice”), within 30 days following the date of receipt (as specified in the Committee’s certification) by the Company Representative of a copy of the Notice, disputing that all or a portion of the Indemnification Claim is indemnifiable under the Merger Agreement, the Purchasers Committee and the Company Representative shall receive attempt to resolve such dispute by voluntary settlement as provided in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser as Section 2(c) below and in accordance with Section 9.2 of the earlier date of (i) distribution of Merger Agreement. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Shares or Agent from the Company Representative within such 30-day period, the Indemnification Claim shall be deemed to be an Established Claim (iias hereinafter defined) the occurrence for purposes of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% of the Escrow Shares for each full percentage point by which the Performance Threshold was not achieved, not to exceed the total number of Escrow Shares initially depositedthis Agreement. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal Stockholder. No later than five (5) business days after delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative, If the Company and the Purchaser Representative shall provide joint written instructions in accordance with the calculations above delivers a Counter Notice to the Escrow Agent (with a copy to the “Disbursement Instructions”Committee) instructing in accordance with Section 9.2 of the Merger Agreement, the Committee and the Company Representative shall, during the period of 30 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given through good faith negotiations in accordance with Section 9.2(d)(i) of the Merger Agreement. If the Committee and the Company Representative reach a settlement with respect to any such dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. (d) If the Committee and the Representative cannot resolve a dispute through good faith negotiations prior to issue expiration of the 30-day period referred to in Section 2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be subject to resolution in accordance with Sections 9.2(d)(ii) and deliver (iii) of the applicable Escrow Shares. Promptly Merger Agreement. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Parent by settlement pursuant to Section 2(c) above, resulting in an award to Parent, (iii) Indemnification Claim established pursuant to Section 2(d) above, resulting in an award to Parent, (iv) Third Party Claim that has been sustained by a final determination (after receiving exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Disbursement Instructions, Committee and the Company Representative have jointly notified the Escrow Agent will issue and deliver the Escrow Shares has been settled in accordance with the Disbursement Instructions. Notwithstanding anything to the contrary set forth in this Agreement, (i) if Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, who own Preferred Shares or Conversion Shares provisions of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, and (ii) the Purchaser Representative shall have no authority to provide Merger Agreement or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date), by notice given to the Purchaser Representative no later than one (1) business day after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, dispute the calculation of the 2011 PT and/or the Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. If the Company does not achieve the 2011 PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representativeotherwise.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2010 PT and the 2011 PT based on the following formula: (a) In the event the Company achieves at least 95no less than 100% of the applicable Performance Threshold, all of the Escrow Shares for the corresponding fiscal year shall be returned to the Principal StockholderCompany and cancelled. (b) If the Company achieves less than 95100% of the applicable Performance Threshold, the Purchasers Investors shall receive in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or shares of Common Stock underlying the Preferred Shares (the “Conversion Shares Shares”) then owned by each such Purchaser Investor as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% an aggregate of 1,080,250 shares of the Escrow Shares for each full percentage point by which the applicable Performance Threshold was not achieved, not achieved up to exceed the total number of Escrow Shares for the applicable fiscal year. The number of Escrow Shares payable to each Investor shall be equal to a fraction of the total number of Escrow Shares potentially issuable pursuant to the terms hereof, the numerator of which shall be the amount by which (i) the number of Conversion Shares issued or issuable upon Preferred Shares which was initially depositedissued to the Investor exceeds (ii) the sum of (x) the number of Conversion Shares sold or otherwise transferred by the Investor plus (y) the number of shares of Conversion Shares issued or issuable sold or otherwise transferred by the Investor, and the denominator of which is the number of Conversion Shares issued or issuable by the Company in the Offering. Any Escrow Shares for either Fiscal Year 2010 or Fiscal Year 2011 which are not transferred to the Investors pursuant to this paragraph shall be returned to the Company for cancellation. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal Stockholder. No later earlier than five (5) and no later than ten (10) business days after the Investor Representative’s delivery to each of the Fiscal Year 2011 Annual Report Investors of the Proposed Disbursement Materials pursuant to the Purchaser RepresentativeSection 1.04 hereof, the Company and the Purchaser Investor Representative shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructionscalculations set forth herein. Notwithstanding anything to the contrary set forth in this Agreement, : (i) if Escrow Shares are distributed pursuant to Section 1.5(b1.05(b) above, only those Purchasers, and their assignees or transferees, Investors who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, date and (ii) the Purchaser Investor Representative shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers Investors holding at least a majority of the Preferred Shares or Conversion Shares on the distribution date (based on the aggregate number of Preferred Shares and Conversion Shares held by all of the Purchasers Investors on the distribution date), by notice given to the Purchaser Investor Representative no later than one five (15) business day days after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) 1.04 hereof, dispute the calculation of the 2011 PT 2010 PT, the 20101PT and/or the Escrow Shares to be distributed to the Purchasers Investors or returned to the Principal StockholderCompany, as the case may be. Any Escrow Shares not delivered to any Purchaser Investor because such Purchaser Investor no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. Company for cancellation. (d) If the Company does not achieve the 2010 PT or the 2011 PT, the Company shall use reasonable its best efforts to promptly cause the applicable Escrow Shares to be delivered to the PurchasersInvestors, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the PurchasersInvestors. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2010 Annual Report or the Fiscal Year 2011 Annual Report Report, as applicable, to the Purchaser Investor Representative.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 2010 PT based on the following formula: (a) In the event the Company achieves at least 95% of the Performance Threshold, all of the Escrow Shares for the corresponding fiscal year shall be returned to the Principal StockholderStockholders. (b) If the Company achieves less than 95% of the applicable Performance Threshold, the Purchasers shall receive in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% that number of the Escrow Shares that are convertible into 500,000 shares of Common Stock for each full percentage point by which the Performance Threshold was not achieved, not achieved up to exceed the total number of Escrow Shares initially deposited. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal StockholderShares. No later than five (5) business days after delivery of the Fiscal Year 2011 2010 Annual Report to the Purchaser Representative, the Company and the Purchaser Representative shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructions. Notwithstanding anything to the contrary set forth in this Agreement, (i) if Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, and (ii) the Purchaser Representative shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date), by notice given to the Purchaser Representative no later than one (1) business day after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, dispute the calculation of the 2011 2010 PT and/or the Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal StockholderStockholders. If the Company does not achieve the 2011 2010 PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 2010 Annual Report to the Purchaser Representative.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 2010 PT based on the following formula: (a) In the event the Company achieves at least 95% of the Performance Threshold, all of the Escrow Shares for the corresponding fiscal year shall be returned to the Principal Stockholder. (b) If the Company achieves less than 95% of the applicable Performance Threshold, the Purchasers shall receive in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of the Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% that number of the Escrow Shares that are convertible into 500,000 shares of Common Stock for each full percentage point by which the Performance Threshold was is not achieved, not up to exceed the total number of the Escrow Shares initially deposited. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal StockholderShares. No later than five (5) business days after delivery of the Fiscal Year 2011 Annual Report Proposed Disbursement Material to the Purchaser RepresentativePurchasers, the Company and the Purchaser Representative Purchasers shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructions. Notwithstanding anything to the contrary set forth in this Agreement, (i) if the Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, and (ii) the Purchaser Representative Purchasers shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if the Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date) (the “Majority Purchasers”), by notice given to the Purchaser Representative Purchasers no later than one three (13) business day days after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, dispute the calculation of the 2011 2010 PT and/or the number of Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. If the Company does not achieve the 2011 2010 PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 Annual Report Proposed Disbursement Material to the Purchaser RepresentativePurchasers. For purposes of this Section 1.5, all fractional amounts shall be rounded up to the nearest whole percentage point.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 PT 2011PT based on the following formula: (a) In the event the Company achieves at least 95% of the Performance Threshold, all of the Escrow Shares shall be returned to the Principal Stockholder. (b) If the Company achieves less than 95% of the applicable Performance Threshold, the Purchasers shall receive in the aggregate, on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date of the Financing Transaction), 10% of the Escrow Shares for each full percentage point by which the Performance Threshold was not achieved, not to exceed the total number of Escrow Shares initially deposited. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal Stockholder. No later than five (5) business days after delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative, the Company and the Purchaser Representative shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructions. Notwithstanding anything to the contrary set forth in this Agreement, (i) if Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, and (ii) the Purchaser Representative shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date), by notice given to the Purchaser Representative no later than one (1) business day after dayafter their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, dispute the calculation of the 2011 PT 2011PT and/or the Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. If the Company does not achieve the 2011 PT2011PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 Annual 2011Annual Report to the Purchaser Representative.

Distribution of the Escrow Shares. The parties other than the Escrow Agent hereby agree that the Escrow Shares shall be distributed for the 2011 PT based on the following formula: (a) In the event the Company achieves at least 95% of the Performance Threshold, all of the Escrow Shares for the corresponding fiscal year shall be returned to the Principal Stockholder. (b) If the Company achieves less than 95% of the applicable Performance Threshold, the Purchasers shall receive in the aggregate, rounded up to the nearest whole share and on a pro rata basis (based upon the number of Preferred Shares or Conversion Shares owned by each such Purchaser as of the earlier date of (i) distribution of the Escrow Shares or (ii) the occurrence of automatic conversion of Preferred Shares pursuant to designations of Preferred Shares, divided by the total number of Preferred Shares or Conversion Shares issued to all of the Purchasers on the Closing Date closing date of the Financing Transaction), 10% of the 86,115.55 Escrow Shares for each full percentage point by which the Performance Threshold was not achieved, not achieved up to exceed the total number of Escrow Shares initially deposited. (c) Escrow Shares not distributed to the Purchasers shall be returned to the Principal StockholderShares. No later earlier than five (5) and no later than ten (10) business days after delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative’s delivery to each of the Purchasers of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, the Company and the Purchaser Representative shall provide joint written instructions in accordance with the calculations above to the Escrow Agent (the “Disbursement Instructions”) instructing the Escrow Agent to issue and deliver the applicable Escrow Shares. Promptly after receiving the Disbursement Instructions, Instructions the Escrow Agent will issue and deliver the Escrow Shares in accordance with the Disbursement Instructions. Notwithstanding anything to the contrary set forth in this Agreement, (i) if Escrow Shares are distributed pursuant to Section 1.5(b) above, only those Purchasers, and their assignees or transferees, Purchasers who own Preferred Shares or Conversion Shares of the Company at the time that the Escrow Shares are distributed hereunder shall be entitled to receive the applicable Escrow Shares calculated based on their ownership interest on the distribution date, date and (ii) the Purchaser Representative shall have no authority to provide or to cause to be provided the Disbursement Instructions to the Escrow Agent if Purchasers holding at least a majority of the Preferred Shares on the distribution date (based on the aggregate number of Preferred Shares held by all of the Purchasers on the distribution date), by notice given to the Purchaser Representative no later than one five (15) business day days after their receipt of the Proposed Disbursement Materials pursuant to Section 1.4(b) hereof, dispute the calculation of the 2011 PT and/or the Escrow Shares to be distributed to the Purchasers or returned to the Principal Stockholder, as the case may be. Any Escrow Shares not delivered to any Purchaser because such Purchaser no longer holds Preferred Shares or Conversion Shares shall be returned to the Principal Stockholder. If the Company does not achieve the 2011 PT, the Company shall use reasonable best efforts to promptly cause the applicable Escrow Shares to be delivered to the Purchasers, including causing its transfer agent to promptly, but in no event longer than five (5) business days after delivery of the Disbursement Instructions, transfer the certificates into the names of the Purchasers. The Company shall also instruct its securities counsel to provide any written instruction required by the Escrow Agent or the transfer agent in a timely manner so that the issuances and delivery contemplated above can be achieved within seven (7) business days following delivery of the Fiscal Year 2011 Annual Report to the Purchaser Representative.