Common use of Escrow Fund Clause in Contracts

Escrow Fund. Prior to or simultaneously with the Closing, the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.

Escrow Fund. Prior to or simultaneously with (a) As soon as practicable after the Closing, the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow AgreementEffective Time, Parent shall deposit one a stock certificate or more stock certificates in the name of the Escrow Agent representing the Escrow Shares Shares, into an escrow account, which account is to the Escrow Fund. The Escrow Fund shall be managed governed by the terms set forth herein. The Escrow Agent (Fund shall be available to compensate the “Parent Indemnitees pursuant to the indemnification obligations of the Managing Stockholders set forth in Section 10.01(a) above. Notwithstanding the foregoing, and subject to the provisions of Section 10.02 above, the parties expressly agree that the Escrow Account”)Fund shall not limit the remedies of the Parent Indemnitees in connection with any breach of any representation, warranty, covenant or agreement made by Company or the Managing Stockholders under this Agreement or in connection with the conduct of the business of EAI. Any The number of Escrow Shares beneficially owned by each Managing Stockholder, the percentage interest of each Stockholder in the Escrow Account Fund, the address of each Managing Stockholder and the taxpayer identification of each Managing Stockholder are referred to herein set forth on Annex F attached hereto. (b) Parent shall hold and safeguard the Escrow Shares during the Escrow Period on behalf of the Managing Stockholders, shall not treat such Escrow Shares as the “Escrow Fund”. In connection with such deposit property of Parent, and shall hold and dispose of the Escrow Shares only in accordance with the terms hereof. (c) The Escrow Agent and as Shares shall be voted by Parent in accordance with the instructions received by Parent from the Managing Stockholders who are the beneficial owners of such Escrow Shares. Should Parent not receive such instructions at least three (3) business days prior to the date set for a stockholder meeting or vote, Parent shall prompt notify the Managing Stockholders either in person, via facsimile or by nationally recognized courier service, informing them of the Effective Timeneed to provide Parent with voting instructions. If, each holder after providing such notice, Parent still has not received voting instructions from the Managing Stockholders, Parent shall be under no obligation to vote such Escrow Shares. (d) As promptly as practicable following the termination of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata Period, Parent (i) shall deposit with Parent's stock transfer agent (which is currently American Stock Transfer and Trust Company) the Escrow Shares then remaining in the Escrow Fund, less the amount of Escrow Shares, if any, necessary to satisfy any unsatisfied claims specified in any Indemnity Claim Certificate delivered to the Managing Stockholders prior to termination of the Escrow Period with respect to facts and circumstances existing prior to expiration of the Escrow Period, and (ii) shall cause such transfer agent to transfer such Escrow Shares to the Managing Stockholders in the percentage set forth on Annex F. As soon as all such claims against the Escrow Shares have been resolved, Parent shall cause its transfer agent to deliver to such Managing Stockholders all of the Escrow Shares remaining in the Escrow Fund that are not required to satisfy such claims and expenses. Each Managing Stockholder shall receive that number of Escrow Shares equivalent to such Managing Stockholder's percentage interest in the Escrow Fund as determined as set forth in Annex F hereto. (e) Any cash dividends, dividends payable in securities or other distributions of Closing by reference to such stockholder’s ownership of any kind (but excluding any shares of Company Stock (plus any additional shares Parent capital stock received upon a stock split or stock dividend) shall be distributed as may be issued upon any stock split, stock dividend or recapitalization effected promptly as practicable by Parent after to the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement beneficial holder of the Escrow Shares to which such distribution relates, by check mailed via first class mail, to the Managing Stockholders at their respective addresses, and in escrow the percentage interests, set forth in Annex F. Any shares of Parent Common Stock issuable upon a stock split in respect of any securities in the Escrow Fund shall be added to the Escrow Fund and become a part thereof. Any provision of this Article X shall be adjusted to appropriately reflect any stock split or reverse stock split. (f) Each Managing Stockholder agrees to provide Parent, within thirty (30) days after the appointment of date hereof, certified tax identification numbers by furnishing an appropriate form W-9 and other forms and documents that Parent may reasonably request (collectively, "Tax Reporting Documentation"). The parties hereto understand that, if such Tax Reporting Documentation is not so certified to Parent, Parent may be required by the Stockholders’ Representative. No Internal Revenue Code, as it may be amended from time to time, to withhold a portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant interest or other security exercisable or convertible into Company Stock. No Parent Shares contributed to income earned on the Escrow Fund shall be unvested or subject to any right investment of repurchase, risk of forfeiture monies or other condition in favor of the Surviving Corporation.property held by Parent pursuant to this Article X.

Escrow Fund. Pursuant to Section 3.01 of the Merger Agreement, the Escrow Cash and the Escrow Shares of each Indemnifying Stockholder, as applicable, shall be delivered by NetScout (on behalf of the Indemnifying Stockholders) to the Escrow Agent as provided below. Escrow Cash in the amount of $10 million shall be delivered by NetScout by wire transfer of immediately available funds promptly after the Closing (and, in any event, no later than the Closing Date) to an account designated by the Escrow Agent prior to the Closing Date, and the Escrow Shares shall be delivered by NetScout as soon as practicable after the Closing and in any event within three (3) Business Days after the Closing Date. The Indemnifying Stockholders’ interest in the Escrow Cash and Escrow Shares will not be pro rata as, to the extent provided by the Merger Agreement, some Indemnifying Stockholders will not have any rights to receive the Escrow Shares. Prior to or simultaneously with the ClosingClosing Date, NetScout and the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable Stockholders Representatives will deliver to the Escrow Agent a completed version of Attachment A, which will identify the name and address of the Indemnifying Stockholders’ Representative , their percentage interest in the Escrow Cash, Escrow Shares (the “if applicable) and total Escrow Agent”), substantially Fund. The Escrow Shares shall be in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates a single certificate registered in the name of “Embassy & Co.” as nominee for the Escrow Agent. On the day of receipt of the Escrow Shares and/or the Escrow Cash by the Escrow Agent, the Escrow Agent representing shall deliver a certificate signed by an authorized representative of the Escrow Agent to each of NetScout and the Stockholders Representatives acknowledging receipt of the Escrow Shares into an escrow account, which account is to be managed by and/or the Escrow Agent (the “Cash. The Escrow Account”). Any Escrow Shares in Shares, the Escrow Account Cash and any further items deposited into the Escrow Fund in accordance with the terms hereof are referred to herein as the “Escrow Fund”. In connection with such deposit ; it being understood that Taxable Income (as defined in Section 4(b)) shall not constitute part of the Escrow Shares with Fund for purposes of this Agreement and the Merger Agreement. The Escrow Agent Fund shall be held as a trust fund and as shall not be subject to any lien, attachment, trustee process or any other judicial process of the Effective Time, each holder any creditor of Company Stock will be deemed to have received and deposited with the any party hereto. Any Escrow Agent each stockholder’s pro rata interest Cash in the Escrow Fund as determined as of Closing by reference shall be invested in accordance with Section 4. The Escrow Agent agrees to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting hold the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by Fund in an escrow account subject to the terms and conditions of the Escrow Agreement. The adoption of this Agreement for the benefit of NetScout and for the approval pro rata benefit of the Merger by the Company Indemnifying Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating theretoaccording to their percentage interest therein, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.as set forth on Attachment A.

Escrow Fund. Prior to or simultaneously with the Closing, the Stockholders’ ----------- Shareholders' Representative (as defined in Section 9.04) and Parent shall enter into an escrow agreement (the “"Escrow Agreement”") with an escrow agent selected ---------------- by Parent and reasonably acceptable to the Stockholders’ Shareholders' Representative (the “"Escrow Agent”), ") substantially in the form of Exhibit B hereto. Pursuant to the ------------ --------- terms of the Escrow Agreement, at the Closing, Parent shall deposit one or more certificates representing, in the name of aggregate, the Escrow Agent representing the Escrow Shares Shares, into an escrow account, which account is to be managed by the Escrow Agent (the “"Escrow ------- Account”"). Any Escrow Shares in the Escrow Account are referred to herein as the “------- "Escrow Fund”. ." In connection with such deposit of the Escrow Shares with the ----------- Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s shareholder's pro rata interest in the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership shareholder's pro rata share of shares of Company Parent Common Stock deliverable at the Closing pursuant to Section 2.01(a)(i) (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders shareholders of the Company (the “"Company Stockholders”------- Shareholders"). Distributions of any Escrow Shares from the Escrow Account shall ------------ be governed by the terms and conditions of the Escrow Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders Shareholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Shareholders' Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant Options or other security exercisable or convertible into Company Stock. No To the extent possible, no shares of Parent Shares Common Stock contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation. To avoid ambiguity with regard to the foregoing sentence, any shares of Parent Common Stock deposited into the Escrow Fund on behalf of the individuals listed in Schedule 6.05(b) hereto shall be comprised of shares that would otherwise be delivered to such individuals as fully vested shares.

Escrow Fund. Prior to or simultaneously with At the ClosingEffective Time, without any act of any Equityholder, Parent will deposit the Stockholders’ Representative and Parent shall enter Escrow Amount into an escrow agreement account with an institution (the “Escrow AgreementAgent”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Company or Equityholder Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent to establish and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting constitute the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any The Escrow Shares from the Escrow Account Fund shall be governed by the terms set forth in this Section 7.2 and conditions of the Escrow Agreement. The adoption of this Agreement entered into between Parent, the Equityholder Agent and the approval of Escrow Agent in the Merger form agreed by Parent, the Company Stockholders shall constitute approval and the Equityholder Agent (the “Escrow Agreement”), with such changes as the Escrow Agent may reasonably propose and Parent and the Equityholder Agent may agree to. To the extent that the provisions of the Escrow Agreement agreed by Parent and of all the arrangements relating thereto, including, without limitationEquityholder Agent differ from this Agreement, the placement Escrow Agreement shall govern. Parent shall pay one-half of the costs and expenses related to the establishment and maintenance of the Escrow Shares in escrow Fund and the appointment Equityholders shall pay one-half of such costs and expenses. The cash portion of the Stockholders’ RepresentativeEscrow Amount shall be deposited into an interest bearing account and any interest earned thereon shall be added to the Escrow Fund and available to cover Losses of Parent and its affiliates hereunder. No portion Any distributions on the shares of Parent Common Stock held in the Escrow Fund other than cash dividends shall be held by the Escrow Agent and shall be deemed attached to the shares of Parent Common Stock to which they pertain. Any cash dividends paid with respect to any Equityholder's Parent Common Stock held in the Escrow Fund shall be contributed paid to such Equityholder. For applicable income tax purposes, any shares of Parent Common Stock and amounts distributed in respect thereof shall be treated as owned by the Equityholder on whose behalf such securities are being held. For applicable income tax purposes, any cash earned on the Escrow Amount and held in the Escrow Fund (other than amounts distributed with respect to Parent Common Stock held in the Escrow Fund, which amounts shall be treated as owned by the Equityholders) shall be treated as owned by Parent unless and until the Escrow Fund is released to the Equityholders, and Parent shall be entitled to receive distributions from such cash sufficient to satisfy its tax liabilities with respect thereto. The Equityholders shall not have the right to sell, transfer, pledge, hypothecate or otherwise dispose of any cash or securities held in the Escrow Fund or any interest therein for so long as they are held in the Escrow Fund, other than in connection with a sale by the Escrow Agent to satisfy claims as provided herein. Each Equityholder shall be entitled to vote the shares of Parent Common Stock held in the Escrow Fund on behalf of such Equityholder. Any amounts distributed to Parent from the Escrow Fund in payment of claims pursuant to this Article VII shall be taken pro rata from each Equityholder based on its Proportionate Interest, first from the cash included in the Escrow Fund on account of such Equityholder (to the extent thereof). To the extent the cash held in the Escrow Account on behalf of an Equityholder is not sufficient to satisfy such Equityholder's share of a claim, the Escrow Agent shall, on behalf of such Equityholder, sell an appropriate number of shares of Parent Common Stock to achieve proceeds equal to the amount to be distributed to Parent from the Escrow Fund in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed such Equityholder and deliver the proceeds to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving CorporationParent.

Escrow Fund. Prior to or simultaneously with (i) At the Closing, the Stockholders’ Representative Escrow Shares shall be registered in the name of, and Parent shall enter into an escrow agreement be deposited with, U.S. Bank Trust (the “Escrow Agreement”) with an escrow agent or other institution selected by Parent with the reasonable consent of the Company) as escrow agent (the "Escrow Agent"), such deposit and reasonably acceptable any Additional Escrow Shares to constitute the Escrow Fund and to be governed by the terms set forth herein and in the Escrow Agreement attached hereto as Exhibit G. The Escrow Fund shall be available to compensate Parent pursuant to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms indemnification obligations of the Stockholders. In the event Parent issues any Additional Escrow AgreementShares, Parent shall deposit one or more certificates such shares will be issued in the name of the Escrow Agent representing and delivered to the Escrow Agent in the same manner as the Escrow Shares into an escrow accountdelivered at the Closing. (ii) Except for dividends paid in stock declared with respect to the Escrow Shares ("Additional Escrow Shares"), which account is to shall be managed by the Escrow Agent (the “Escrow Account”). Any treated as Escrow Shares pursuant to this Section 7.2 and all references in this Section 7.2 to the term "Escrow Account are referred Shares" shall be deemed to herein as the “include any Additional Escrow Fund”. In connection with such deposit Shares, any cash dividends, dividends payable in securities or other distributions of any kind made in respect of the Escrow Shares with will be delivered to the Escrow Agent and as Stockholders of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s on a pro rata interest basis based upon their respective interests in the Escrow Fund as determined as at the time of Closing by reference distribution (in each case, such Stockholder's "Pro Rata Share"). Each Stockholder of the Company will have voting rights with respect to such stockholder’s ownership 's Pro Rata Share of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund)Shares deposited in the Escrow Fund so long as such Escrow Shares are held in escrow, without any act and Parent will take all reasonable steps necessary to allow the exercise of such rights. While the stockholders Escrow Shares remain in the Escrow Agent's possession pursuant to this Agreement, each Stockholder of the Company (will retain and will be able to exercise all other incidents of ownership of such stockholder's Pro Rata Share of the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by which are not inconsistent with the terms and conditions of the Escrow this Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.

Escrow Fund. Prior to At the Effective Time, without any act of the Company or simultaneously with any Stockholder, Parent will deposit the Closing, the Stockholders’ Representative and Parent shall enter Escrow Amount into an escrow agreement (the “Escrow Agreement”) account with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative Xxxxx Fargo Bank, N.A. (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent to establish and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting constitute the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any The Escrow Shares from the Escrow Account Fund shall be governed by the terms set forth in this Section 7.2 and conditions an escrow agreement substantially in the form attached hereto as Exhibit K (the “Escrow Agreement”). Parent shall pay one-half of the costs and expenses related to the establishment and maintenance of the Escrow AgreementFund and the Escrow Stockholders shall pay one-half of such costs and expenses. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval cash portion of the Escrow Agreement Amount shall be deposited into an interest bearing account and of all the arrangements relating thereto, including, without limitation, the placement of any interest earned thereon shall be added to the Escrow Shares Fund and available to cover Losses of Parent and its affiliates hereunder. Any distributions on the shares of Parent Common Stock held in escrow the Escrow Fund other than regular cash dividends shall be held by the Escrow Agent and shall be deemed attached to the appointment shares of the Stockholders’ RepresentativeParent Common Stock to which they pertain. No portion of For applicable income tax purposes, any dividends, interest or other income earned on the Escrow Fund shall be contributed in respect treated as income of the Escrow Stockholder on whose behalf such securities or assets giving rise to such interest or other income, as the case may be, are being held. The Escrow Stockholders shall not have the right to sell, transfer, pledge, hypothecate or otherwise dispose of any Company Option cash or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to securities held in the Escrow Fund or any interest therein for so long as they are held in the Escrow Fund. Each Escrow Stockholder shall be unvested or subject entitled to any right vote the shares of repurchaseParent Common Stock held in the Escrow Fund for so long as they are held by the Escrow Agent, risk of forfeiture or other condition in favor pro rata based on the value of the Surviving Corporationshares of Parent Common Stock deposited in the Escrow Fund on behalf of such Escrow Stockholder. For purposes of determining the value of any shares of Parent Common Stock included in the Escrow Fund, each such share shall be deemed to have a value equal to the Average Price. Any amounts distributed to Parent from the Escrow Fund pursuant to this Article VII shall be taken pro rata from the value of the amount in the Escrow Fund on account of each Escrow Stockholder (valuing any shares of Parent Common Stock at the Average Price), first from the cash included in the Escrow Fund on account of such Escrow Stockholder and second from any shares of Parent Common Stock held in the Escrow Fund on account of such Escrow Stockholder.

Escrow Fund. Pursuant to Section 3.01 of the Merger Agreement, the Escrow Cash and the Escrow Shares of each Indemnifying Stockholder, as applicable, shall be delivered by NetScout (on behalf of the Indemnifying Stockholders) to the Escrow Agent as provided below. Escrow Cash in the amount of $10 million shall be delivered by NetScout by wire transfer of immediately available funds promptly after the Closing (and, in any event, no later than the Closing Date) to an account designated by the Escrow Agent prior to the Closing Date, and the Escrow Shares shall be delivered by NetScout as soon as practicable after the Closing and in any event within three (3) Business Days after the Closing Date. The Indemnifying Stockholders’ interest in the Escrow Cash and Escrow Shares will not be pro rata as, to the extent provided by the Merger Agreement, some Indemnifying Stockholders will not have any rights to receive the Escrow Shares. Prior to or simultaneously with the ClosingClosing Date, NetScout and the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable Stockholders Representatives will deliver to the Escrow Agent a completed version of Attachment A, which will identify the name and address of the Indemnifying Stockholders’ Representative , their percentage interest in the Escrow Cash, Escrow Shares (the “if applicable) and total Escrow Agent”), substantially Fund. The Escrow Shares shall be in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates a single certificate registered in the name of “Embassy & Co.” as nominee for the Escrow Agent. On the day of receipt of the Escrow Shares and/or the Escrow Cash by the Escrow Agent, the Escrow Agent representing shall deliver a certificate signed by an authorized representative of the Escrow Agent to each of NetScout and the Stockholders Representatives acknowledging receipt of the Escrow Shares into an escrow account, which account is to be managed by and/or the Escrow Agent (the “Cash. The Escrow Account”). Any Escrow Shares in Shares, the Escrow Account Cash and any further items deposited into the Escrow Fund in accordance with the terms hereof are referred to herein as the “Escrow Fund”. In connection with such deposit ” it being understood that Taxable Income (as defined in Section 4(b)) shall not constitute part of the Escrow Shares with Fund for purposes of this Agreement and the Merger Agreement. The Escrow Agent Fund shall be held as a trust fund and as shall not be subject to any lien, attachment, trustee process or any other judicial process of the Effective Time, each holder any creditor of Company Stock will be deemed to have received and deposited with the any party hereto. Any Escrow Agent each stockholder’s pro rata interest Cash in the Escrow Fund as determined as of Closing by reference shall be invested in accordance with Section 4. The Escrow Agent agrees to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting hold the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by Fund in an escrow account subject to the terms and conditions of the Escrow Agreement. The adoption of this Agreement for the benefit of NetScout and for the approval pro rata benefit of the Merger by the Company Indemnifying Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating theretoaccording to their percentage interest therein, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.as set forth on Attachment A.

Escrow Fund. Prior to or simultaneously with the Closing, the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and as of At the Effective Time, each holder of shares of Company Capital Stock (each, a “Company Stockholder” and collectively, the “Company Stockholders”) will be deemed to have received and deposited with the Escrow Agent (as defined below) each stockholderCompany Stockholder’s pro rata interest in the Escrow Fund Amount as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock set forth in the Final Conversion Schedule (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow FundAmount), without any act of any Company Stockholder. As soon as practicable after the stockholders Effective Time, the Escrow Amount, without any act of any Company Stockholder, will be deposited with U.S. Bank Trust, National Association (or other institution acceptable to Parent and the Company Securityholder Agent (as defined in Section 7.3(g) below)) as Escrow Agent (the “Company StockholdersEscro w Agent”). Distributions of any , such deposit to constitute an escrow fund (the “Escrow Shares from the Escrow Account shall Fund”) to be governed by the terms set forth in this Section and conditions to be maintained at Parent’s cost and expense. The portion of the Escrow Agreement. The adoption Amount contributed on behalf of this Agreement each Company Stockholder shall be in proportion to the aggregate Parent Common Stock to which such holder would otherwise be entitled under Section 1.6(b) and shall be in the approval of respective amounts listed opposite each Company Stockholder’s name listed on the Merger Final Conversion Schedule and executed by the Company Stockholders shall constitute approval and delivered to Parent at Closing. In the case of a Company Stockholder holding both (a) shares of Company Capital Stock subject to vesting, whether through a right or repurchase, forfeiture or other condition, and (b) vested shares of Company Capital Stock, the shares to be contributed to the Escrow Agreement Fund on behalf of such Company Stockholder shall be allocated among vested and unvested shares in proportion to the ratio that the to tal number of all vested shares held by such Company Stockholder bears to the arrangements relating thereto, including, without limitation, the placement total number of the Escrow Shares in escrow and the appointment of the Stockholders’ Representativeunvested shares held by such Company Stockholder. No portion of the Escrow Fund Amount shall be contributed in respect of any Company Option Options or any warrant or other security exercisable or convertible into for Company Capital Stock. No Upon compliance with the terms hereof and subject to the provisions of this Article VII, Parent Shares contributed and the Surviving Corporation shall be entitled to obtain indemnity from the Escrow Fund for Losses covered by the indemnity provided for in Section 7.2. All taxable income accrued or earned in respect of the Escrow Amount shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor treated as the income of the Surviving CorporationCompany Stockholders for all Tax purposes.

Escrow Fund. Prior to or simultaneously with (a) At the Closing, the Stockholders’ Representative and Parent Escrow Securities shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates be issued in the name of the Escrow Agent representing the Escrow Shares into an escrow accounteach Involve stockholder, which account is to as set forth on Schedule 1.5, and be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest in Agent. *** shall constitute the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the "Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account " and shall be governed by the terms set forth herein and conditions of in the Escrow Stockholders Agreement. The adoption first fifteen percent (15%) of any Shares issued upon exercise of Substituted Options by any holder thereof while the Escrow Fund is in existence shall also be added to the Escrow Fund and shall be subject to the terms of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ RepresentativeAgreement. No portion of the The Escrow Fund shall be contributed available to compensate Merger Sub or Kintera pursuant to the indemnification obligations of the Indemnifying Parties pursuant to Section 8.2. In the event Kintera issues any Additional Escrow Shares (as defined below), such shares will be issued in respect the name of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed the Involve stockholders and held by the Escrow Agent for the benefit of the Involve stockholders and delivered to the Escrow Fund Agent in the same manner as the Escrow Securities delivered at the Closing. (b) Except for dividends paid in stock declared with respect to the Escrow Securities ("Additional Escrow Shares"), which shall be unvested or treated as Escrow Securities, any cash dividends will be delivered to the Involve stockholders. The Involve stockholders will have voting rights for the Escrow Securities deposited in the Escrow Fund so long as such Escrow Securities are held in Escrow. Shares purchasable upon exercise of Substituted Options as a result of dividends paid in stock shall also be subject to any right of repurchase, risk of forfeiture or other condition cancellation in favor satisfaction of the Surviving Corporationindemnification obligation of the holders thereof.

Escrow Fund. Prior to or simultaneously with (a) At the Closing, the Stockholders’ Representative and Parent Escrow Securities shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates be issued in the name of the Escrow Agent representing the Escrow Shares into an escrow accounteach Involve stockholder, which account is to as set forth on Schedule 1.5, and be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest in Agent. The Escrow Securities shall constitute the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the "Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account " and shall be governed by the terms set forth herein and conditions of in the Escrow Stockholders Agreement. The adoption first fifteen percent (15%) of any Shares issued upon exercise of Substituted Options by any holder thereof while the Escrow Fund is in existence shall also be added to the Escrow Fund and shall be subject to the terms of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ RepresentativeAgreement. No portion of the The Escrow Fund shall be contributed available to compensate Merger Sub or Kintera pursuant to the indemnification obligations of the Indemnifying Parties pursuant to Section 8.2. In the event Kintera issues any Additional Escrow Shares (as defined below), such shares will be issued in respect the name of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed the Involve stockholders and held by the Escrow Agent for the benefit of the Involve stockholders and delivered to the Escrow Fund Agent in the same manner as the Escrow Securities delivered at the Closing. (b) Except for dividends paid in stock declared with respect to the Escrow Securities ("Additional Escrow Shares"), which shall be unvested or treated as Escrow Securities, any cash dividends will be delivered to the Involve stockholders. The Involve stockholders will have voting rights for the Escrow Securities deposited in the Escrow Fund so long as such Escrow Securities are held in Escrow. Shares purchasable upon exercise of Substituted Options as a result of dividends paid in stock shall also be subject to any right of repurchase, risk of forfeiture or other condition cancellation in favor satisfaction of the Surviving Corporationindemnification obligation of the holders thereof.

Escrow Fund. Prior to or simultaneously (a) Concurrently with the ClosingEffective Time, without any action by any holder of Company Common Stock, that number of Initial Parent Shares equal to the Stockholders’ Representative and quotient obtained by dividing (x) $10,500,000 by (y) the Parent shall enter into an escrow agreement Closing Price (such shares being the “Escrow AgreementShares”) shall be deposited with an escrow agent American Stock Transfer & Trust Company, LLC (or such other institution mutually selected by Parent and reasonably acceptable to the Stockholders’ Representative Company) as escrow agent (the “Escrow Agent”), substantially in such deposit to constitute the form of Exhibit B hereto. Pursuant “Escrow Fund” and to be governed by the terms of the Escrow Agreement, Parent shall deposit one or more certificates set forth herein and in the name of the Escrow Agent representing the Escrow Shares into an escrow accountagreement among Parent, which account is to be managed by APSLP and the Escrow Agent (the “Escrow AccountAgreement”), the form of which is attached as Exhibit B hereto. The Escrow Shares shall be registered in the name of APSLP. Any Escrow Shares dividends or distributions made by Parent in the Escrow Account are referred to herein as the cash or property, including shares of Parent Common Stock, or other Parent equity securities (including shares issued upon a stock split) (“Escrow FundNew Shares”. In connection with such deposit ), in respect of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to that have received and deposited with the Escrow Agent each stockholder’s pro rata interest in not been released from the Escrow Fund as determined as of Closing by reference shall be added to the Escrow Fund, and become a part thereof. (b) APSLP (or its direct or indirect owners) shall pay any Taxes on such stockholder’s ownership of shares of Company Stock (plus any additional shares as may dividends or distributions on the Escrow Shares described in Section 2.11(a); provided, that Tax distributions shall be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time permitted with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by the terms and conditions of such dividends or distributions in accordance with the Escrow Agreement. The adoption parties hereto shall cause APSLP to have the ability to direct the voting of this Agreement and the approval that number of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested on behalf of APSLP (including on any New Shares issued or subject to any right of repurchase, risk of forfeiture or other condition distributed by Parent in favor respect of the Surviving CorporationEscrow Shares) so long as such shares are held in the Escrow Fund. Parent shall record the Parent Common Stock contributed to the Escrow Fund as issued and outstanding on its balance sheet.

Escrow Fund. Prior MERGER CONSIDERATION; CONVERSION OF COMPANY COMMON SHARES AND COMPANY PREFERRED SHARES. (a) On or prior to or simultaneously with the ClosingClosing Date (i) Parent, the Company and the Stockholders’ ' Representative and Parent (as defined below) shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable to the Stockholders’ Representative (the “Escrow Agent”), Agreement substantially in the form of attached hereto as Exhibit B heretoG (the "Escrow Agreement") with State Street Bank and Trust Company, as escrow agent (the "Escrow Agent"). Pursuant to At the terms Closing, portions of the Escrow Agreement, Parent shall deposit one or more certificates Preferred Shares and Aggregate Merger Cash Consideration ( as defined below in Section 1.6(b)) as specified in the name of Escrow Agreement shall be deposited by Parent in an escrow fund (the "Escrow Fund") to the Escrow Agent representing the Escrow Shares into an escrow account, which account is to shall be managed held by the Escrow Agent (the “Escrow Account”)in such capacity. Any Escrow Such Parent Preferred Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited with the Escrow Agent each stockholder’s pro rata interest held in the Escrow Fund as determined as of Closing shall be beneficially owned by reference to the holders on whose behalf such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting were deposited in the Escrow Fund), without any act Fund and shall be available to compensate Parent as provided in Article VIII and in the Escrow Agreement. (b) The aggregate amount of cash and securities to be paid to the stockholders of the Company (each, a "Company Stockholder" and collectively, the “"Company Stockholders”") upon the conversion of, and as consideration for, all of the issued and outstanding Company Shares at the Effective Time shall equal $18,000,000 (the "Aggregate Merger Consideration"). Distributions The Aggregate Merger Consideration shall be comprised of 4,000,000 shares of Parent Preferred Stock having the rights, preferences and terms set forth in that certain private placement offering (the "Offering") of Parent pursuant to Parent's Confidential Private Placement Memorandum dated as of May 5, 1999, as amended and supplemented to date (the "Private Placement Memorandum") ( a copy of which will be delivered to each such Company Stockholder prior to the Effective Time) and in Section 1.6 of the Parent Disclosure Schedule. Each Company Stockholder shall be entitled to that portion of the aggregate Merger Stock Consideration (as defined in Section 1.6(c)(i)) as determined in accordance with the rights and preferences of each class and series of capital stock of the Company as set forth in the Company's Certificate of Incorporation and described in Section 1.6(b) of the Parent Disclosure Schedule. Notwithstanding the foregoing, if Parent determines that Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act"), does not permit it to issue shares of Parent Preferred Stock to any Company Stockholder which is not an "accredited investor" as such term is defined in the Securities Act, such Company Stockholder (an "Unaccredited Company Stockholder") shall be issued, at Parent's discretion, cash in the amount of $4.50 for each share of Parent Preferred Stock to which the Unaccredited Company Stockholder would have been entitled in lieu of shares of such Parent Preferred Stock (the "Merger Cash Consideration", the aggregate Merger Cash Consideration paid to all of the Unaccredited Company Stockholders, hereinafter referred to as the "Aggregate Merger Cash Consideration"). (c) At the Effective Time, by virtue of the Merger and without any action on the part of the parties hereto or the holders of the following securities: (i) Subject to the other provisions of this Article I, each Company Share issued and outstanding immediately prior to the Effective Time (other than any Company Shares to be canceled pursuant to Section 1.7 and any Dissenting Shares (as defined in Section 1.17)) shall be converted automatically into the right to receive (i) the Exchange Ratio Fraction of a fully paid and nonassessable share of Parent Preferred Stock, together with cash, if any, in lieu of any Escrow Shares from fraction of a share of Parent Preferred Stock, pursuant to Section 1.11 (collectively, the Escrow Account shall be governed by the terms and conditions "Merger Stock Consideration"), less such Company Stockholder's share of the Escrow Agreement. The adoption of this Agreement Fund, and the approval of the Merger (ii) if such Company Share is held by the an Unaccredited Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating theretoShareholder, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No such stockholder's portion of the Escrow Fund Aggregate Merger Cash Consideration. (ii) For purposes of this Agreement, the "Exchange Ratio Fraction" shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed mean the quotient (calculated to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of nearest five (5) decimal places) obtained by dividing (x) the Surviving Corporation.result obtained from subtracting the Xxxxxxxxx

Escrow Fund. Prior to or simultaneously with (a) At the Closing, the Stockholders’ Representative Escrow Shares shall be registered in the name of, and Parent shall enter into an be deposited with, Fidelity National Bank (or other institution agreeable to both PURCHASER and TARGET) as escrow agreement agent (the “"Escrow Agreement”) with an escrow agent selected Agent"), such deposit and any Additional Escrow Shares to constitute the Escrow Fund and to be governed by Parent the terms set forth herein and reasonably acceptable in the Escrow Agreement in substantially the form attached hereto as Exhibit 4. The Escrow Fund shall be available to compensate PURCHASER pursuant to the indemnification obligations of the Warranting Stockholders’ Representative . In the event PURCHASER issues any Additional Escrow Shares (the “Escrow Agent”as defined below), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates such shares will be issued in the name of the Escrow Agent representing and delivered to the Escrow Agent in the same manner as the Escrow Shares into an escrow accountdelivered at the Closing. (b) Except for dividends paid in stock declared with respect to the Escrow Shares ("Additional Escrow Shares"), which account is to shall be managed by the Escrow Agent (the “Escrow Account”). Any treated as Escrow Shares pursuant to Section 11.1(a) hereof, any cash dividends, dividends payable in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit securities or other distributions of any kind made in respect of the Escrow Shares will be delivered to the Warranting Stockholders based on each such Warranting Stockholder's Proportional Allotment. Each Warranting Stockholder shall have voting rights with respect to the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and Shares deposited with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference with respect to such stockholder’s 's Proportional Allotment so long as such Escrow Shares are held in escrow, and PURCHASER will take all reasonable steps necessary to allow the exercise of such rights. While the Escrow Shares remain in the Escrow Agent's possession pursuant to this Agreement and the Escrow Agreement, the Warranting Stockholders shall retain and shall be able to exercise all other incidents of ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any such Escrow Shares from the Escrow Account shall be governed by which are not inconsistent with the terms and conditions of the Escrow this Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.

Escrow Fund. Prior to or simultaneously with (a) At the Closing, the Stockholders’ Representative Escrow Shares shall be registered in the name of, and Parent shall enter into an be deposited with, First Union National Bank (or other institution agreeable to both PURCHASER and TARGET) as escrow agreement agent (the “"Escrow Agreement”) with an escrow agent selected Agent"), such deposit and any Additional Escrow Shares to constitute the Escrow Fund and to be governed by Parent the terms set forth herein and reasonably acceptable in the Escrow Agreement in substantially the form attached hereto as Exhibit 4. The Escrow Fund shall be available to compensate PURCHASER pursuant to the indemnification obligations of the Warranting Stockholders’ Representative . In the event PURCHASER issues any Additional Escrow Shares (the “Escrow Agent”as defined below), substantially in the form of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates such shares will be issued in the name of the Escrow Agent representing and delivered to the Escrow Agent in the same manner as the Escrow Shares into an escrow accountdelivered at the Closing. (b) Except for dividends paid in stock declared with respect to the Escrow Shares ("Additional Escrow Shares"), which account is to shall be managed by the Escrow Agent (the “Escrow Account”). Any treated as Escrow Shares pursuant to Section 9.01(a) hereof, any cash dividends, dividends payable in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit securities or other distributions of any kind made in respect of the Escrow Shares will be delivered to the Warranting Stockholders based on each such Warranting Stockholder's Proportional Allotment. Each Warranting Stockholder shall have voting rights with respect to the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and Shares deposited with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference with respect to such stockholder’s 's Proportional Allotment so long as such Escrow Shares are held in escrow, and PURCHASER will take all reasonable steps necessary to allow the exercise of such rights. While the Escrow Shares remain in the Escrow Agent's possession pursuant to this Agreement and the Escrow Agreement, the Warranting Stockholders shall retain and shall be able to exercise all other incidents of ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any such Escrow Shares from the Escrow Account shall be governed by which are not inconsistent with the terms and conditions of the Escrow this Agreement. The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion of the Escrow Fund shall be contributed in respect of any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed to the Escrow Fund shall be unvested or subject to any right of repurchase, risk of forfeiture or other condition in favor of the Surviving Corporation.

Escrow Fund. Prior to the Effective Time, Parent will designate a commercial bank or simultaneously with the Closing, the Stockholders’ Representative and Parent shall enter into an escrow agreement (the “Escrow Agreement”) with an escrow agent selected by Parent and trust company reasonably acceptable to the Stockholders’ Representative Company to act as an agent (the “Escrow Agent”), substantially ) in the form of Exhibit B hereto. Pursuant to accordance with the terms of the Escrow Agreement. As of the Effective Time, Parent shall will deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares Amount into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with ) to be maintained by the Escrow Agent and as of the Effective Time, each holder of Company Stock will be deemed to have received and deposited in accordance with the Escrow Agent each stockholder’s pro rata interest in the Escrow Fund as determined as of Closing by reference to such stockholder’s ownership of shares of Company Stock (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to shares constituting the Escrow Fund), without any act of the stockholders of the Company (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement. The adoption Escrow Fund will be disbursed to or on behalf of Parent or the Principal Stockholders in accordance with this Agreement and the approval of the Merger Escrow Agreement. If requested by the Company Stockholders shall constitute approval of prior to Closing, or by the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Principal Stockholders’ Representative. No portion of Representative after Closing, the Escrow Fund may be replaced by a transaction and litigation liability insurance policy providing insurance with no less protection and security, and on the same or more favorable terms, as comprising the Escrow Fund, and otherwise satisfactory to Parent, in Parent’s sole discretion, the premiums of which shall be contributed a Transaction Expense if obtained prior to Closing, or at the sole expense of the Principal Stockholders’ Representative if obtained after Closing. For the avoidance of doubt and notwithstanding anything to the contrary in respect this Agreement or any instrument delivered pursuant to this Agreement, the Company acknowledges and agrees that Parent retains, and has bargained for through arms length negotiation with the Company, the sole and absolute discretion to determine whether such transaction and litigation liability insurance policy is satisfactory. In making such determination, the Company acknowledges and agrees that Parent’s sole and absolute discretion shall not be limited or otherwise constrained by any express or implied contractual duty or covenant (including the covenant of good faith and fair dealing) and that such duty or covenant shall not form in any manner whatsoever the basis of any Liability of Parent, whether in contract, tort or otherwise. The Company Option hereby waives its rights, if any, under any such duty or covenant and hereby agrees not to initiate any Action at law or in equity (whether for injunction or specific performance under Section 9.6 or otherwise) arising out of or related to such duty or covenant in connection with the exercise of Parent’s sole and absolute discretion under this Section 1.9(b). The Company acknowledges and agrees that Parent shall be under no obligation (i) to consider the interests of, or any warrant actual or potential consequences or impact to, the Company, its Affiliates, its stockholders, including the Principal Stockholders, or any other security exercisable Person, or convertible into Company Stock. No Parent Shares contributed (ii) to consult with, or seek guidance or approval from, the Escrow Fund shall be unvested Company, its Affiliates, its stockholders, including the Principal Stockholders, or subject to any right other Person, in each case, in connection with the exercise of repurchase, risk of forfeiture or other condition in favor of the Surviving CorporationParent’s sole and absolute discretion under this Section 1.9(b).

Escrow Fund. Prior to or simultaneously with (a) Parent Preferred Shares having a value of the Closing, lesser of (i) $10 million and (ii) the Stockholders’ Representative and Stock Value minus $50 million (such Parent Preferred Shares being the "Escrow Fund") shall enter into an escrow agreement (be withheld from the “Escrow Agreement”) with an escrow agent selected by Parent and reasonably acceptable amounts issued to the Stockholders’ Representative (the “Escrow Agent”), substantially in the form Company's stockholders and holders of Exhibit B hereto. Pursuant to the terms of the Escrow Agreement, Parent shall deposit one or more certificates in the name of the Escrow Agent representing the Escrow Shares into an escrow account, which account is to be managed by the Escrow Agent (the “Escrow Account”). Any Escrow Shares in the Escrow Account are referred to herein as the “Escrow Fund”. In connection with such deposit of the Escrow Shares with the Escrow Agent and Company Options as of the Effective Time, each holder in the amounts and allocated as set forth on EXHIBIT B, and shall instead be delivered to an escrow agent pursuant to an escrow agreement substantially in the form of Company Stock EXHIBIT C hereto (the "Escrow Agreement"). (b) Notwithstanding Section 2.06(a), Parent Preferred Shares having a value equal to any amounts in respect of the Bovespa/Real Adjustment and the estimated Balance Sheet Adjustment which would have been paid to Parent but for the $50 Million Requirement will be deemed delivered to have received and deposited with Parent rather than being placed in Escrow as part of the Escrow Agent each stockholder’s pro rata interest Fund. (c) If Net Quick Assets on the Balance Sheet Schedule minus Net Quick Assets on the Estimated Schedule is a negative number, Parent Preferred Shares having an absolute value of such amount shall be released from the Escrow Fund to Parent. If Net Quick Assets on the Balance Sheet Schedule minus Net Quick Assets on the Estimated Schedule is a positive number, Parent Preferred Shares having an absolute value of such amount shall be issued by Parent and subject to the last sentence of the clause (c), shall be delivered to the Representative. Such releases shall occur promptly following the final determination of the Balance Sheet Schedule. Notwithstanding the foregoing, shares of Parent Preferred Shares shall be delivered to the Representative pursuant to this subparagraph only to the extent that Parent Preferred Shares having a value of $10 million remain in the Escrow Fund. (d) If Debt plus Excess Expenses on the Balance Sheet Schedule minus Debt plus Excess Expenses on the Estimated Schedule is a positive number, Parent Preferred Shares having a value of such amount shall be released from the Escrow Fund as determined as to Parent. If Debt plus Excess Expenses on the Balance Sheet Schedule minus Debt plus Excess Expenses on the Estimated Schedule is a negative number, Parent Preferred Shares having an absolute value of Closing such amount shall be issued by reference Parent and, subject to such stockholder’s ownership the last sentence of this clause (d), shall be delivered to the Representative. Such release shall occur promptly following the final determination of the Balance Sheet Schedule. Notwithstanding the foregoing, shares of Parent Preferred Shares shall be delivered to the Representative pursuant to this subparagraph only to the extent that Parent Preferred Shares having a value of $10 million remain in the Escrow Fund. (e) Parent Preferred Shares having a value equal to the amount of the Active Subscriber Adjustment shall be released from the Escrow Fund to Parent promptly following the final determination of the Active Subscriber Adjustment. (f) To the extent (x) any Channel set forth in EXHIBIT D is determined pursuant to a Channel Schedule not to be Good and Deliverable at any time prior to the First Anniversary as a result of acts or omissions by the Company Stock (plus or any additional shares as may be issued upon any stock split, stock dividend of its subsidiaries on or recapitalization effected by Parent after prior to the Effective Time (and not resulting from acts or omissions by Parent or any other entity following the Effective Time), Parent Preferred Shares having a value equal to the value of all such Channels, determined using the values set forth on EXHIBIT D, shall be released from the Escrow Fund to Parent and (y) any other Channel set forth in Section 3.15(a) of the Company Disclosure Schedule is determined pursuant to the Channel Schedule not to be Good and Deliverable as of the Effective Time, Parent Preferred Shares having a value of equal to the value of all such Channels shall be released from the Escrow Fund to Parent. Such release shall occur promptly following the final determination of a Channel Schedule; PROVIDED, that any determination of a Good and Deliverable Channel under this Section 2.06 and a release from the Escrow Fund in respect therefor shall supersede any claim for indemnification with respect to shares constituting the Escrow Fund), without any act such Channel made for a breach of the stockholders representation contained in the second sentence of Section 3.15(a) hereof or any similar claim regarding the Company diminution in value of such Channel. (the “Company Stockholders”). Distributions of any Escrow Shares from the Escrow Account shall be governed by the terms and conditions of the Escrow Agreement. g) The adoption of this Agreement and the approval of the Merger by the Company Stockholders shall constitute approval of the Escrow Agreement and of all the arrangements relating thereto, including, without limitation, the placement of the Escrow Shares in escrow and the appointment of the Stockholders’ Representative. No portion balance of the Escrow Fund shall will be contributed held until the later of the First Anniversary and the resolution of any claims (i) pending as of the First Anniversary pursuant to Section 8.01 hereof or (ii) alleging an adjustment in respect of the matters contemplated by this Section 2.06, provided that any Company Option or any warrant or other security exercisable or convertible into Company Stock. No Parent Shares contributed undisputed amounts shall be released to the Escrow Fund Representative on the First Anniversary. (h) For purposes of this Section 2.06, Parent Preferred Shares shall be unvested or subject valued at the Offer Price. To the extent other consideration has been deposited in the Escrow Fund, references to any right of repurchase, risk of forfeiture or Parent Preferred Shares shall include references to such other condition in favor of the Surviving Corporationconsideration.