Common use of Escrow Fund and Indemnification by the Company Clause in Contracts

Escrow Fund and Indemnification by the Company. At the Effective ---------------------------------------------- Time the Company's shareholders will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any shareholder pursuant to an Escrow Agreement to be negotiated by the Parent, Company and the Escrow Agent in a form reasonably satisfactory to them and consistent with this Article VIII (the "Escrow Agreement"). As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Company shareholder, will be deposited by Parent with The Bank of New York (or other institution acceptable to Parent and the Securityholder Agents (as defined in Section 8.2(g) below)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in the Escrow Agreement. The portion of the Escrow Amount contributed on behalf of each shareholder of the Company shall be in proportion to the aggregate Parent Common Stock, which such holder would otherwise be entitled under Sections 1.6(a) and (b) and shall be in the respective share amounts and percentages listed on the Closing Date Payment Schedule opposite each Company shareholder's name. All shares of Parent Common Stock contributed to the Escrow Fund shall not be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation. The Escrow Fund shall be available to compensate Parent and its affiliates (including the Surviving Corporation) for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses") incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger) or (ii) any failure by the Company to perform or comply with any covenant contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger); provided any such claims must be asserted on or before 5:00 p.m. (Minnesota Time) on the Expiration Date. Except as otherwise provided herein, Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in paragraph (e) and such amount is determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (excluding any Losses within the $500,000 threshold) for which there is no objection or any objection had been resolved in accordance with the provisions of this Article VIII; provided, however, that to the extent Third Party Expenses -------- ------- (as defined in Section 10.2), incurred by the Company in connection with this Agreement and the Merger exceed $250,000 in the aggregate, such excess shall be deemed a Loss for purposes of Article VIII and shall be immediately reimbursable to Parent in accordance with this Article VIII (without regard to the $500,000 minimum threshold for Losses and without counting toward the $500,000 threshold).

Escrow Fund and Indemnification by the Company. At the Effective ---------------------------------------------- Time the Company's shareholders holders of Company Common Stock (the “Escrow Participants”) will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any such shareholder pursuant to an Escrow Agreement to be negotiated by the Parent, Company and the Escrow Agent in a form reasonably satisfactory to them and them, consistent with this Article VIII and in the form set forth as Exhibit I hereto (the "“Escrow Agreement"”). As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Company shareholder, will be deposited by Parent with The Bank of New York US Bank, N.A. (or other institution acceptable to Parent and the Securityholder Agents (as defined in Section 8.2(g) below)Agent) as Escrow Agent (the "“Escrow Agent"”), such deposit to constitute an escrow fund (the "“Escrow Fund"”) to be governed by the terms set forth herein and in the Escrow Agreement. The portion of the Escrow Amount contributed on behalf of each shareholder holder of the Company Common Stock shall be in proportion to the aggregate number of shares of Parent Common Stock, which such holder would otherwise be entitled under Sections Section 1.6(a) and (b) and shall be in the respective share amounts and percentages listed on the Closing Date Payment Schedule opposite each such Company shareholder's ’s name. All shares of Parent Common Stock contributed to the Escrow Fund shall be vested and not be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation; provided, however, that two-thirds ( 2/3) of the portion of the Escrow Amount contributed on behalf of each of the Company Affiliates shall consist of vested Parent Common Stock, and each of such Company Affiliates’ remaining one-third ( 1/3) of his or her pro rata portion of the Escrow Amount shall consist of unvested Parent Common Stock that vests in whole or in part before any other shares of unvested Parent Common Stock to be held by such person immediately after the Effective Time. The Escrow Fund shall be available to compensate Parent and its affiliates (including the Surviving Corporation) for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' ’ fees and expenses, and expenses of investigation and defense (hereinafter individually a "“Loss" ” and collectively "“Losses"”) incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger) without regard to any materiality qualifiers, including without limitation Material Adverse Effect or (ii) any failure by the Company to perform or comply with any covenant contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger); provided any such claims must be asserted on or before 5:00 p.m. (Minnesota California Time) on the Expiration Date. Except as otherwise provided herein, Losses incurred by the Parent may not receive any shares from shall be satisfied by the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in paragraph (e) and such amount is determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (excluding any Losses within the $500,000 threshold) for which there is no objection or any objection had been resolved in accordance with the provisions procedures set forth in Sections 8.2(d) and 8.2(e) of this Article VIII; provided, however, that to the extent Third Party Expenses -------- ------- (as defined in Section 10.2), incurred by the Company in connection with this Agreement and the Merger exceed $250,000 in the aggregate, such excess shall be deemed a Loss for purposes of Article VIII and shall be immediately reimbursable to Parent in accordance with this Article VIII (without regard to the $500,000 minimum threshold for Losses and without counting toward the $500,000 threshold)Agreement.”

Escrow Fund and Indemnification by the Company. At the Effective ---------------------------------------------- Time the Company's shareholders holders of Company Common Stock (the “Escrow Participants”) will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any such shareholder pursuant to an Escrow Agreement to be negotiated by the Parent, Company and the Escrow Agent in a form reasonably satisfactory to them and them, consistent with this Article VIII and in the form set forth as Exhibit I hereto (the "“Escrow Agreement"”). As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Company shareholder, will be deposited by Parent with The Bank of New York US Bank, N.A., a Minnesota corporation (or other institution acceptable to Parent and the Securityholder Agents (as defined in Section 8.2(g) below)Agent) as Escrow Agent (the "“Escrow Agent"”), such deposit to constitute an escrow fund (the "“Escrow Fund"”) to be governed by the terms set forth herein and in the Escrow Agreement. The portion of the Escrow Amount contributed on behalf of each shareholder holder of the Company Common Stock shall be in proportion to the aggregate number of shares of Parent Common Stock, which such holder would otherwise be entitled under Sections Section 1.6(a) and (b) and shall be in the respective share amounts and percentages listed on the Closing Date Payment Schedule opposite each such Company shareholder's ’s name; provided, however, that the portion contributed by each person listed on Schedule 6.16 hereto shall be increased by the number of shares (the “Additional Escrow Amount”) that is equal to the result of (A) $406,651 divided by the Common Exchange Ratio and (B) multiplied by the “Additional Escrow Percentage Factor” set forth on the Closing Date Payment Schedule. All shares of Parent Common Stock contributed to the Escrow Fund shall be vested and not be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation; provided, further, that two-thirds ( 2/3) of the portion of the Escrow Amount contributed on behalf of each of the Company Affiliates shall consist of vested Parent Common Stock, and each of such Company Affiliates’ remaining one-third ( 1/3) of his or her pro rata portion of the Escrow Amount, as well as all of his or her pro rata portion of the Additional Escrow Amount, shall consist of unvested Parent Common Stock that vests in whole or in part before any other shares of unvested Parent Common Stock to be held by such person immediately after the Effective Time. The unvested Parent Common Stock held by the Company Affiliates shall vest in accordance with the provisions set forth in Section 2(a)(iii) of the Founder Agreements. The Escrow Fund shall be available to compensate Parent and its affiliates (including the Surviving Corporation) for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' ’ fees and expenses, and expenses of investigation and defense (hereinafter individually a "“Loss" ” and collectively "“Losses"”) incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger) without regard to any materiality qualifiers, including without limitation Material Adverse Effect or (ii) any failure by the Company to perform or comply with any covenant contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger); provided any such claims must be asserted on or before 5:00 p.m. (Minnesota California Time) on the Expiration Date. Except as otherwise provided herein, Losses incurred by the Parent may not receive any shares from shall be satisfied by the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in paragraph (e) and such amount is determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (excluding any Losses within the $500,000 threshold) for which there is no objection or any objection had been resolved in accordance with the provisions procedures set forth in Sections 8.2(d) and 8.2(e) of this Article VIII; provided, however, that to the extent Third Party Expenses -------- ------- (as defined in Section 10.2), incurred by the Company in connection with this Agreement and the Merger exceed $250,000 in the aggregate, such excess shall be deemed a Loss for purposes of Article VIII and shall be immediately reimbursable to Parent in accordance with this Article VIII (without regard to the $500,000 minimum threshold for Losses and without counting toward the $500,000 threshold)Agreement.”

Escrow Fund and Indemnification by the Company. At the Effective ---------------------------------------------- Time the Company's shareholders holders of Company Common Stock will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any such shareholder pursuant to an Escrow Agreement to be negotiated by the Parent, Company and the Escrow Agent in a form reasonably satisfactory to them and them, consistent with this Article VIII and in the form set forth as Exhibit I hereto (the "“Escrow Agreement"”). As soon as practicable after the Effective Time, the Escrow Amount, without any act of any Company shareholder, will be deposited by Parent with The Bank of New York US Bank, N.A., a Minnesota corporation (or other institution acceptable to Parent and the Securityholder Agents (as defined in Section 8.2(g) below)Agent) as Escrow Agent (the "“Escrow Agent"”), such deposit to constitute an escrow fund (the "“Escrow Fund"”) to be governed by the terms set forth herein and in the Escrow Agreement. The portion of the Escrow Amount contributed on behalf of each shareholder holder of the Company Common Stock shall be in proportion to the aggregate number of shares of Parent Common Stock, which such holder would otherwise be entitled under Sections Section 1.6(a) and (b) and shall be in the respective share amounts and percentages listed on the Closing Date Payment Schedule opposite each such Company shareholder's ’s name. All shares of Parent Common Stock contributed to the Escrow Fund shall be vested and not be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation; provided, however, that two-thirds (2/3) of the portion of the Escrow Amount contributed on behalf of each of the founders of the Company shall consist of vested Parent Common Stock and each of such founder’s remaining one-third (1/3) of his or her pro rata portion of the Escrow Amount shall consist of unvested Parent Common Stock that vests in whole or in part before any other shares of unvested Parent Common Stock to be held by such person immediately after the Effective Time. The Escrow Fund shall be available to compensate Parent and its affiliates (including the Surviving Corporation) for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' ’ fees and expenses, and expenses of investigation and defense (hereinafter individually a "“Loss" ” and collectively "“Losses"”) incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger) without regard to any materiality qualifiers, including without limitation Material Adverse Effect or (ii) any failure by the Company to perform or comply with any covenant contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger); provided any such claims must be asserted on or before 5:00 p.m. (Minnesota California Time) on the Expiration Date. Except as otherwise provided herein, Losses incurred by the Parent may not receive any shares from shall be satisfied by the Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $500,000, have been delivered to the Escrow Agent as provided in paragraph (e) and such amount is determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Escrow Fund equal in value to all indemnified Losses (excluding any Losses within the $500,000 threshold) for which there is no objection or any objection had been resolved in accordance with the provisions procedures set forth in Sections 8.2(d) and 8.2(e) of this Article VIII; provided, however, that to the extent Third Party Expenses -------- ------- (as defined in Section 10.2), incurred by the Company in connection with this Agreement and the Merger exceed $250,000 in the aggregate, such excess shall be deemed a Loss for purposes of Article VIII and shall be immediately reimbursable to Parent in accordance with this Article VIII (without regard to the $500,000 minimum threshold for Losses and without counting toward the $500,000 threshold)Agreement.