Common use of Escrow Periods Clause in Contracts

Escrow Periods. The Escrow with respect to the Indemnification Shares shall be in existence immediately following the Effective Time, as defined in the Merger Agreement, and shall terminate at 5:00 p.m. (Pacific Time) on _______________ 200__ (the "Escrow Period"); provided, however, that the Escrow Period shall not terminate with respect to any portion of the Shares, which in the reasonable judgment of Parent is necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) delivered to the Escrow Agent and Stockholders' Agent prior to the termination of the Escrow Period with respect to facts and circumstances existing prior to the termination of such Escrow Period. As soon as all such claims have been resolved and the Escrow Agent has received notice thereof from Parent, the Escrow Agent shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.

Escrow Periods. (a) Except as otherwise provided herein, the Escrow Fund shall terminate on the date that is thirty (30) days following delivery of audited consolidated financial statements of NSI, including Sunbelt, for the year ended December 31, 2007. The period commencing with the Closing Date and terminating on such date shall be called the “Escrow with respect Period.” In the event that no Officer’s Certificates (as defined below) have been delivered by NSI on the date which is thirty (30) days following delivery of audited consolidated financial statements of NSI, including Sunbelt, for the year ended December 31, 2006, then on such date (the “First Release Date”), one-half of the monies comprising the Escrow Fund will be distributed to the Indemnification Shares applicable Sunbelt Shareholders. (b) If the Escrow Fund terminates pursuant to Section 8.4(a), then, subject to the limitations contained in Section 8.4(c), the Escrow Amount that remains in the Escrow Fund that has not been delivered to NSI pursuant to Section 8.5 shall be in existence immediately following distributed to the Effective Time, as defined in Sunbelt Shareholders. (c) Any distributions of Escrow Amounts to the Merger Agreement, and shall terminate at 5:00 p.m. (Pacific Time) on _______________ 200__ (the "Escrow Period"); provided, however, that Sunbelt Shareholders from the Escrow Period Fund shall not terminate with respect to any portion of the Sharesbe reduced by an amount, which which, in the reasonable judgment of Parent is NSI, subject to the objection of the Sunbelt Shareholders and the subsequent resolution of the matter in the manner provided in Section 8.7, are necessary to satisfy any then pending and unsatisfied claims specified in any Officer's ’s Certificate (as defined below) theretofore delivered to the Escrow Agent and Stockholders' Agent the Sunbelt Shareholders prior to the termination of the Escrow Period with respect to facts and circumstances existing Damages incurred or litigation pending prior to expiration of the termination of such Escrow Period. As soon as all Any such amount shall remain in the Escrow Fund until such claims have been resolved and the finally resolved. Any Escrow Agent has received notice thereof from Parent, the Escrow Agent Amounts that are not delivered to NSI upon resolution of such claims shall deliver be eligible for distribution to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Sunbelt Shareholders.

Escrow Periods. The Escrow with respect to the Indemnification Shares shall be in existence immediately following the Effective Time, as defined in the Merger Agreement, and Fund shall terminate at 5:00 p.m. upon the -------------- first anniversary date of the Closing Date (Pacific Time) on _______________ 200__ (the period from the Closing Date to such Date being referred to as the "Escrow Period"); , and within ten (10) days thereof, the Escrow Agent shall deliver to the Former Target Shareholders the Escrow Shares and Escrow Cash remaining in the Escrow fund, provided, however, -------- ------- that (a) to the Escrow Period shall not terminate with respect to any extent that a portion of a Former Shareholder's Pro Rata Portion of such Escrow Shares is allocable to an unexercised Acquiror Option, such Escrow Shares will be delivered to Acquiror, (b) the Sharesnumber of Escrow Shares or Escrow Cash, which which, in the reasonable judgment of Parent is Acquiror, subject to the objection of the Stockholders' Agents and the subsequent resolution of the matter in the manner provided in Section 10.7, are necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the Escrow Agent and the Stockholders' Agent Agents prior to the termination of the Escrow Period with respect to facts and circumstances existing Damages incurred or litigation pending prior to expiration of the termination of such Escrow Period. As soon as all , shall remain in the Escrow Fund until such claims have been resolved finally resolved, and (c) Escrow Shares or Escrow Cash with a value of $500,000 (as determined pursuant to Section 10.5) shall remain in the Escrow Agent has received notice thereof from Parent, Fund until there is a final resolution of the Escrow Agent shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent audit by the percentage relating to Shares set forth next to the name Internal Revenue Service of each Company Stockholder on Annex I. Unless Parent has delivered an OfficerTarget's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent 1998 income tax returns and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ payments and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.any proceedings resulting therefrom.

Escrow Periods. (a) The Escrow with respect Fund shall commence on the Closing Date and terminate on the later to occur of (i) the one (1) year anniversary of the date of the Effective Time and (ii) ten (10) days after the completion and delivery to Acquiror of the DCAA audit of the Company for the year ended December 31, 2005 or such earlier date (which is not expected to be later than November 30, 2007) on which the Acquiror and the Stockholders’ Agent mutually agree on the expected results of the DCAA audit for such year (the “Expiration Date,” and the period between the Closing and the Expiration Date shall be referred to as the “Escrow Period”), provided, however, that the portion of the Base Escrow Amount, which, in the reasonable judgment of Acquiror, subject to the Indemnification Shares objection of the Stockholders’ Agent and the subsequent resolution of the matter in the manner provided in Section 8.7, is necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate theretofore delivered to the Escrow Agent and the Stockholders’ Agent prior to termination of the Escrow Period, shall remain in the Escrow Fund until such claims have been finally resolved, or, if earlier, until released in accordance with Section 8.1 above and 8.5 below. (b) The portion of the Escrow Fund that is comprised of the Supplemental Escrow Amount shall terminate on the earlier of (i) the date on which the Company has received the Stockholder Acknowledgement and Waivers from all of the Company Stockholders, or (ii) the Expiration Date (the “Supplemental Expiration Date”). Notwithstanding the foregoing, in the event that any Company Stockholder listed on Schedule 1.10(b) delivers a Stockholder Acknowledgement and Waiver (i) after the Closing but before the ninetieth (90th) day after the Closing Date (the “Supplemental Escrow Release Date”), a portion of the Supplemental Escrow Amount equal to the aggregate values set forth opposite such Company Stockholder’ names on Schedule 1.10(b) under the caption “Supplemental Escrow Amount” shall be released from the Escrow Fund in existence immediately following accordance with the Effective Timeterms of the Escrow Agreement within five (5) business days after the Supplemental Escrow Release Date and (ii) after the Supplemental Escrow Release Date but before the Supplemental Expiration Date, as defined a portion of the Supplemental Escrow Amount equal to the aggregate values set forth opposite such Company Stockholder’ names on Schedule 1.10(b) under the caption “Supplemental Escrow Amount” shall be released from the Escrow Fund in accordance with the Merger Agreement, and shall terminate at 5:00 p.m. terms of the Escrow Agreement within five (Pacific Time5) on _______________ 200__ (business days after the "Escrow Period")Supplemental Expiration Date; provided, however, that in each such case such amounts shall be reduced by any amounts in the Escrow Period shall not terminate with respect to any portion of the Shares, which in the reasonable judgment of Parent is Fund necessary to satisfy any then pending indemnification obligations under Article 8 with respect to Damages resulting from any breach of Sections 2.3, 2.32, 2.34 and unsatisfied claims specified 3.1, and any Dissenting Share Payments pursuant to Section 1.9 set forth in any Officer's ’s Certificate (as defined below) delivered to the Escrow Agent and Stockholders' Agent on or prior to the termination Supplemental Table of Contents Expiration Date or the Supplemental Escrow Release Date, as applicable. Any portion of the Supplemental Escrow Period with respect to facts and circumstances existing prior Amount that remains in the Escrow Fund on the Expiration Date shall be delivered to the termination of such Escrow Period. As soon as all such claims have been resolved and Acquiror within five (5) days after the Expiration Date in accordance with the Escrow Agent has received notice thereof from Parent, the Escrow Agent shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Agreement.

Escrow Periods. (a) Except as otherwise provided herein, the Escrow Fund shall terminate on the date that is thirty (30) days following delivery of audited consolidated financial statements of NSI, including Sunbelt, for the year ended December 31, 2007. The period commencing with the Closing Date and terminating on such date shall be called the “Escrow with respect Period.” In the event that no Officer’s Certificates (as defined below) have been delivered by NSI on the date which is thirty (30) days following delivery of audited consolidated financial statements of NSI, including Sunbelt, for the year ended December 31, 2006, then on such date (the “First Release Date”), one-half of the monies comprising the Escrow Fund will be distributed to the Indemnification Shares applicable Sunbelt Shareholders. (b) If the Escrow Fund terminates pursuant to Section 8.4(a), then, subject to the limitations contained in Section 8.4(c), the Escrow Amount that remains in the Escrow Fund that has not been delivered to NSI pursuant to Section 8.5 shall be in existence immediately following distributed to the Effective TimeSunbelt Shareholders. * Denotes confidential information that has been omitted from the exhibit and filed separately, as defined in accompanied by a confidential treatment request, with the Merger Agreement, Securities and shall terminate at 5:00 p.m. Exchange Commission pursuant to Rule 406 of the Securities Act of 1933. (Pacific Timec) on _______________ 200__ (Any distributions of Escrow Amounts to the "Escrow Period"); provided, however, that Sunbelt Shareholders from the Escrow Period Fund shall not terminate with respect to any portion of the Sharesbe reduced by an amount, which which, in the reasonable judgment of Parent is NSI, subject to the objection of the Sunbelt Shareholders and the subsequent resolution of the matter in the manner provided in Section 8.7, are necessary to satisfy any then pending and unsatisfied claims specified in any Officer's ’s Certificate (as defined below) theretofore delivered to the Escrow Agent and Stockholders' Agent the Sunbelt Shareholders prior to the termination of the Escrow Period with respect to facts and circumstances existing Damages incurred or litigation pending prior to expiration of the termination of such Escrow Period. As soon as all Any such amount shall remain in the Escrow Fund until such claims have been resolved and the finally resolved. Any Escrow Agent has received notice thereof from Parent, the Escrow Agent Amounts that are not delivered to NSI upon resolution of such claims shall deliver be eligible for distribution to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Sunbelt Shareholders.

Escrow Periods. The (a) A portion of the Escrow with respect Amount equal to the Indemnification Shares shall be in existence immediately following the Effective Time, as defined in the Merger Agreement, and shall terminate at 5:00 p.m. (Pacific Time) on _______________ 200__ $15,000,000 (the "Initial Escrow Amount"), plus any Earnings on the Initial Escrow Amount, --------------------- less any payments made from the Escrow Fund, shall remain in the Escrow Fund for a period of eighteen (18) months following the Closing Date (the "Initial Escrow -------------- Period"); provided, however, that the Escrow Period shall not terminate with respect to any a portion of the Shares, which in the reasonable judgment of Parent Initial Escrow Amount and/or ------ any Earnings thereon that is necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the Escrow Agent and Stockholders' Agent prior to the termination of the Initial Escrow Period with respect to facts and circumstances existing prior to expiration of the termination of such Initial Escrow Period. As soon as all Period shall remain in the Escrow Fund until such claims have been resolved resolved. (b) A portion of the Escrow Amount equal to $25,500,000 (the "Special Escrow Amount"), plus any Earnings on the Special Escrow Amount, --------------------- less any payments made from the Escrow Fund, shall remain in the Escrow Fund until, and the escrow period shall terminate at 11:59 p.m. Pacific Standard Time on, the earlier of (a) the sixth (6th) anniversary of the Closing Date or (b) the date specified by Buyer in a notice (the "Notice") delivered to the Escrow ------ Agent (the "Special Escrow Period"); provided, however, that a portion of the --------------------- Special Escrow Amount and/or any Earnings thereon that is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent has received notice thereof from Parent, prior to termination of the Special Escrow Period with respect to facts and circumstances existing prior to expiration of the Special Escrow Period shall remain in the Escrow Agent Fund until such claims have been resolved. Buyer shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by a certificate specifying the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Closing Date.

Escrow Periods. The Escrow with respect to the Indemnification Shares shall be in existence immediately following the Effective Time, as defined in the Merger Agreement, and Fund shall terminate at 5:00 p.m. upon the -------------- first anniversary date of the Closing Date (Pacific Time) on _______________ 200__ (the period from the Closing Date to such Date being referred to as the "Escrow Period"); , and within ten (10) days thereof, the Escrow Agent shall deliver to the Former Target Shareholders the Escrow Shares and Escrow Cash remaining in the Escrow fund, provided, however, that (a) to the Escrow Period shall not terminate with respect to any -------- ------- extent that a portion of a Former Shareholder's Pro Rata Portion of such Escrow Shares is allocable to an unexercised Acquiror Option, such Escrow Shares will be delivered to Acquiror, (b) the Sharesnumber of Escrow Shares or Escrow Cash, which which, in the reasonable judgment of Parent is Acquiror, subject to the objection of the Stockholders' Agents and the subsequent resolution of the matter in the manner provided in Section 10.7, are necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the Escrow Agent and the Stockholders' Agent Agents prior to the termination of the Escrow Period with respect to facts and circumstances existing Damages incurred or litigation pending prior to expiration of the termination of such Escrow Period. As soon as all , shall remain in the Escrow Fund until such claims have been resolved finally resolved, and (c) Escrow Shares or Escrow Cash with a value of $500,000 (as determined pursuant to Section 10.5) shall remain in the Escrow Agent has received notice thereof from Parent, Fund until there is a final resolution of the Escrow Agent shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent audit by the percentage relating to Shares set forth next to the name Internal Revenue Service of each Company Stockholder on Annex I. Unless Parent has delivered an OfficerTarget's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent 1998 income tax returns and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ payments and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.any proceedings resulting therefrom.

Escrow Periods. The (a) A portion of the Escrow with respect Amount equal to the Indemnification Shares shall be in existence immediately following the Effective Time, as defined in the Merger Agreement, and shall terminate at 5:00 p.m. (Pacific Time) on _______________ 200__ $15,000,000 (the "Initial Escrow Amount"), plus any interest or earnings on the Initial Escrow --------------------- Amount, less any payments made from the Escrow Fund, shall remain in the Escrow Fund for a period of eighteen (18) months following the Closing Date (the "Initial Escrow Period"); provided, however, that the Escrow Period shall not terminate with respect to any a portion of the Shares, which in the reasonable judgment of Parent Initial --------------------- Escrow Amount and/or any interest or earnings thereon that is necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the Escrow Agent and Stockholders' Agent prior to the termination of the Initial Escrow Period with respect to facts and circumstances existing prior to expiration of the termination of such Initial Escrow Period. As soon as all Period shall remain in the Escrow Fund until such claims have been resolved and resolved. (b) A portion of the Escrow Amount equal to $25,500,000 (the "Special Escrow Amount"), plus any interest or earnings on the Special Escrow --------------------- Amount, less any payments made from the Escrow Fund, shall remain in the Escrow Fund until the earlier of (a) the sixth (6th) anniversary of the Closing Date or (b) the date specified by Buyer in a notice (the "Notice") delivered to the ------ Escrow Agent (the "Special Escrow Period"); provided, however, that a portion of --------------------- the Special Escrow Amount and/or any interest or earnings thereon that is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent has received notice thereof from Parent, prior to termination of the Special Escrow Period with respect to facts and circumstances existing prior to expiration of the Special Escrow Period shall remain in the Escrow Agent Fund until such claims have been resolved. Buyer shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by a certificate specifying the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Closing Date.

Escrow Periods. The Escrow Fund shall commence on the Closing and terminate with respect to 50% of the Indemnification Escrow Shares shall be in existence immediately following the Effective Time, as defined in the Merger Agreement, and shall terminate at 5:00 p.m. (Pacific Time) on _______________ 200__ (the "Releasable Shares") on the six month anniversary of the Closing (the period from the Closing to such six-month anniversary is referred to herein as the "First Escrow Period"); , provided, however, that the Escrow Period shall not terminate with respect to any portion number of the Releasable Shares, which which, in the reasonable judgment of Parent is Acquiror and valued as set forth in Section 9.6 below and not taking into account the remaining Escrow Shares, subject to the objection of the Stockholders Agent and the subsequent resolution of the matter in the manner provided in Section 9.8, are necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Officer s Certificate (as defined below) theretofore delivered to the Escrow Agent and Stockholders' the Stockholders Agent prior to the termination of the First Escrow Period shall remain in the Escrow Fund until such claims have been finally resolved, or, if earlier, until released in accordance with Section 9.1 above and 9.5(b) below or in connection with the Second Escrow Period. The Escrow Fund shall terminate with respect to facts the remaining number of Escrow Shares on the twelve month anniversary of the Closing (the period from the end of the First Escrow Period through such twelve month anniversary is referred to herein as the "Second Escrow Period," together with the First Escrow Period, the "Escrow Period"), provided, however, that the number of Escrow Shares, which, in the reasonable judgment of Acquiror and circumstances existing valued as set forth in Section 9.6 below, subject to the objection of the Stockholders Agent and the subsequent resolution of the matter in the manner provided in Section 9.8, are necessary to satisfy any unsatisfied claims specified in any Officer s Certificate theretofore delivered to the Escrow Agent and the Stockholders Agent prior to the termination of such the Second Escrow Period (including any unsatisfied claims specified in any Officer s Certificate delivered prior to the termination of the First Escrow Period that have not been finally resolved) with respect to Damages incurred or litigation pending prior to the expiration of the Second Escrow Period. As soon as all , shall remain in the Escrow Fund until such claims have been resolved finally resolved, or if earlier, until released in accordance with Section 9.1 above and the Escrow Agent has received notice thereof from Parent, the Escrow Agent shall deliver to the persons listed on Annex I to this Agreement (the "Company Stockholders") that number of Shares determined by multiplying the total number of Shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate as provided above, if prior to the end of the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.9.5 below.

Escrow Periods. (a) The Escrow period during which any indemnification claims with respect to Regular Damages are permitted to be made under this Article X and the Indemnification Shares Escrow Agreement (such period referred to as the "Regular Escrow Period") shall terminate upon the first anniversary date of the Closing Date. (b) The period during which any indemnification claims with respect to Special IP Damages are permitted to be made under this Article X and the Escrow Agreement (such period referred to as the "Special Escrow Period") shall terminate upon the earliest to occur of (i) the second anniversary date of the Closing Date, ... Each of Mpath, Sub and the Surviving Corporation agree to use reasonable efforts to cause one of the matters described in existence immediately the foregoing clauses (ii) through (v) to occur as soon as possible following the Effective Time, as defined and Mpath, Sub and the Surviving Corporation further agree to include the Stockholders' Agents in any meetings, negotiations, settlements or proceedings relating to the Merger Agreement, and shall terminate at 5:00 p.m. matters described in clauses (Pacific Timeii) on _______________ 200__ through (v) of this Section 10.4. (c) Upon the "termination of Regular Escrow Period"); provided, howeverno Escrow Shares shall be released from the Escrow Fund, that unless the Special Escrow Period shall not terminate with respect to any portion of the Shareshave already terminated, in which in the reasonable judgment of Parent is necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) delivered to case all Escrow Shares shall be released from the Escrow Agent and Stockholders' Agent Fund pursuant to Section 10.6 hereof. (d) In the event that the Special Escrow Period shall terminate prior to the termination of the Regular Escrow Period, fifty percent (50%) of the Escrow Shares initially deposited with the Escrow Agent at the Effective Time, less the number of escrow Shares previously released in respect of Special IP Damages already paid, shall be released from the Escrow Fund pursuant to Section 10.6 hereof. In the event that the Special Escrow Period with respect shall terminate after the termination of the Regular Escrow Period, all of the remaining Escrow Shares shall be released from the Escrow Fund pursuant to facts and circumstances existing Section 10.6 hereof. (e) Notwithstanding the foregoing, in the event that the Special Escrow Period terminates prior to the termination Regular Escrow Period and at the end of such the Regular Escrow Period there exists unsatisfied claims (notice of which shall have been given pursuant to Section 10.5 below) for Regular Damages that were pending prior to expiration of the Regular Escrow Period. As soon as all such claims have been resolved and the Escrow Agent has received notice thereof from Parent, the Escrow Agent shall deliver to retain in the persons listed on Annex I to this Agreement (the "Company Stockholders") Escrow Fund that number of Regular Damage Escrow Shares determined by multiplying (as defined below), which, in the total number reasonable judgment of Shares then held by Escrow Agent by the percentage relating to Shares set forth next Mpath, subject to the name objection of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate the Stockholders' Agents and the subsequent resolution of the matter in the manner provided in Section 10.9, are necessary to satisfy any such unsatisfied claims and such retained Regular Damage Escrow Shares (as provided abovedefined below) shall not be released until such claims have been finally resolved. For purposes of this Section 10.4(e), if prior the term "Regular Damage Escrow Shares" shall mean those Escrow Shares that remain in the Escrow Fund immediately after giving effect to the end release of Escrow Shares contemplated in the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt first sentence of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Section 10.4(d).

Escrow Periods. (a) The Escrow period during which any indemnification claims with respect to Regular Damages are permitted to be made under this Article X and the Indemnification Shares Escrow Agreement (such period referred to as the "Regular Escrow Period") shall terminate upon the first anniversary date of the Closing Date. (b) The period during which any indemnification claims with respect to Special IP Damages are permitted to be made under this Article X and the Escrow Agreement (such period referred to as the "Special Escrow Period") shall terminate upon the earliest to occur of (i) the second anniversary date of the Closing Date, (ii) the assignment to Mpath of the Gateway Patent pursuant to an assignment agreement in existence immediately substance and form reasonably satisfactory to Mpath and its counsel, (iii) the license to Mpath of the Gateway Patent for a period of the duration of the Gateway Patent pursuant to a license agreement in form and substance reasonably satisfactory to Mpath and its counsel, (iv) the declaration, pursuant to a final judgment (with all appeals exhausted) that the Gateway Patent is invalid or that the RTI Patent does not infringe the Gateway Patent, or (v) the receipt by Mpath of an executed certificate from the registered owner of the Gateway Patent that such registered owner waives any and all current and future claims of infringement of the Gateway Patent such registered owner may have against Mpath or its subsidiaries or their respective successors or the customers or licensees of Mpath, its subsidiaries or their respective successors, provided such certificate is in form and substance reasonably satisfactory to Mpath and its counsel. Each of Mpath, Sub and the Surviving Corporation agree to use reasonable efforts to cause one of the matters described in the foregoing clauses (ii) through (v) to occur as soon as possible following the Effective Time, as defined and Mpath, Sub and the Surviving Corporation further agree to include the Stockholders' Agents in any meetings, negotiations, settlements or proceedings relating to the Merger Agreement, and shall terminate at 5:00 p.m. matters described in clauses (Pacific Timeii) on _______________ 200__ through (v) of this Section 10.4. (c) Upon the "termination of Regular Escrow Period"); provided, howeverno Escrow Shares shall be released from the Escrow Fund, that unless the Special Escrow Period shall not terminate with respect to any portion of the Shareshave already terminated, in which in the reasonable judgment of Parent is necessary to satisfy any then pending and unsatisfied claims specified in any Officer's Certificate (as defined below) delivered to case all Escrow Shares shall be released from the Escrow Agent and Stockholders' Agent Fund pursuant to Section 10.6 hereof. (d) In the event that the Special Escrow Period shall terminate prior to the termination of the Regular Escrow Period, fifty percent (50%) of the Escrow Shares initially deposited with the Escrow Agent at the Effective Time, less the number of escrow Shares previously released in respect of Special IP Damages already paid, shall be released from the Escrow Fund pursuant to Section 10.6 hereof. In the event that the Special Escrow Period with respect shall terminate after the termination of the Regular Escrow Period, all of the remaining Escrow Shares shall be released from the Escrow Fund pursuant to facts and circumstances existing Section 10.6 hereof. (e) Notwithstanding the foregoing, in the event that the Special Escrow Period terminates prior to the termination Regular Escrow Period and at the end of such the Regular Escrow Period there exists unsatisfied claims (notice of which shall have been given pursuant to Section 10.5 below) for Regular Damages that were pending prior to expiration of the Regular Escrow Period. As soon as all such claims have been resolved and the Escrow Agent has received notice thereof from Parent, the Escrow Agent shall deliver to retain in the persons listed on Annex I to this Agreement (the "Company Stockholders") Escrow Fund that number of Regular Damage Escrow Shares determined by multiplying (as defined below), which, in the total number reasonable judgment of Shares then held by Escrow Agent by the percentage relating to Shares set forth next Mpath, subject to the name objection of each Company Stockholder on Annex I. Unless Parent has delivered an Officer's Certificate the Stockholders' Agents and the subsequent resolution of the matter in the manner provided in Section 10.9, are necessary to satisfy any such unsatisfied claims and such retained Regular Damage Escrow Shares (as provided abovedefined below) shall not be released until such claims have been finally resolved. For purposes of this Section 10.4(e), if prior the term "Regular Damage Escrow Shares" shall mean those Escrow Shares that remain in the Escrow Fund immediately after giving effect to the end release of Escrow Shares contemplated in the Escrow Period Stockholders' Agent provides the Escrow Agent and Parent a written notice that Parent is in default under the certain Promissory Note dated ___, 2002, by Parent to _________ and within ten business days after receipt first sentence of such notice by Parent, Parent has not provided written notice to Escrow Agent and Stockholders' Agent asserting that it is not in default under such Promissory Note, Escrow Agent shall deliver to the Company Stockholders that number of Shares determined by multiplying the total number of shares then held by Escrow Agent by the percentage relating to Shares set forth next to the name of each Company Stockholder on Annex I.Section 10.4(d).