Common use of Holdback Shares Clause in Contracts

Holdback Shares. On the Closing Date, Buyer shall withhold the Holdback Shares to be retained as security for the indemnification obligations of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion to the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a).

Holdback Shares. (a) On the Closing day following the last day of the Survival Period (the “Release Date”), Buyer the Acquiror shall withhold issue the Holdback Shares to be retained such Persons as security for directed by TAG, in its capacity as the indemnification obligations sole shareholder of B2B and Fintech, subject to compliance with applicable Law, pursuant to the Shareholders set forth in terms of this Section 8.310.4. The portion Acquiror shall be entitled to retain some or all of the Holdback Shares contributed on behalf of each Shareholder shall be only in proportion the following circumstances: (i) prior to the aggregate expiration of the Survival Period, the Shareholder Representative and the Acquiror finally and mutually agree to any liability of the Indemnifying Party and the amount thereof in writing; (ii) during the Survival Period, a tribunal or other relevant authority having jurisdiction issues a final order, establishing indemnification liability of the Indemnifying Party and the amount thereof; or (iii) prior to the expiration of the Survival Period, the Acquiror duly delivers to the Shareholder Representative an Indemnification Notice pursuant to mechanism set forth in Section 10.2(a). Upon the occurrence of either of the events in Section 10.4(a)(i) or Section 10.4(a)(ii), the amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to which the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value Acquiror may retain shall be determined by the average closing price per share mutual, written agreement of Buyer Common Stock on the ten Acquiror and the Shareholder Representative. In the event that such an agreement cannot be reached within sixty (1060) consecutive trading days immediately preceding of the determination of liability, the Shareholder Representative and the Acquiror shall select an independent valuator, appointed jointly by them, to determine, with reference to the agreed or adjudicated amount of the indemnity obligation, the number of Holdback Shares to be retained, if any. Upon delivery of an Indemnification Notice under Section 10.4(a)(iii), the amount of Holdback Shares which the Acquiror may retain shall be no greater than the amount that would be reasonably necessary to satisfy the Claimed Amount specified in such Indemnification Notice if the relevant Claim was resolved in full in favor of the Indemnified Party (the “Extended Holdback Amount”). In all circumstances, the Acquiror shall be entitled to retain the Extended Holdback Amount for no longer than three months following the date of distribution expiration of the Survival Period (the “Extended Holdback SharesPeriod”). PromptlyIf the authority duly adjudicating the matter has not issued a final order, but in any event within three (3) Business Days, following the twelve (12) month anniversary establishing indemnification liability of the Closing DateWarrantor and the amount thereof, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary end of the Closing DateExtended Holdback Period, then the Acquiror shall release the Extended Holdback Amount by no later than the 11:59 p.m. on the last day of any shares then remaining in the Extended Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)Period.

Holdback Shares. On (a) The Buyer and the Closing Date, Buyer shall withhold Seller agree that the Holdback Shares will not be delivered to the Seller at Closing, but will be withheld to provide a source from which any amounts which are owed or may become owing to the Buyer pursuant to this Section 8 may be paid. (b) in the event the Buyer suffers any loss for which it believes it is entitled to payment from the Seller pursuant to this Section 8 (a “Claim”), the Buyer shall provide a written demand (a “Demand”) to the Seller setting forth in reasonable detail the basis of such Demand and the dollar amount (and an estimate of the number of shares equal to such dollar amount) sought to be retained deducted from the Holdback Shares. Unless the Buyer receives a timely Notice of Contention from the Seller as security for provided in Section 8.6(c) below, the indemnification obligations Buyer shall deduct from the Holdback Shares that number of shares as calculated according to Section 8.6(f) below based on the dollar amount specified in the Demand thirty (30) days after delivery of such Demand to the Seller, plus all interest, dividends or other profit thereon. (c) Upon receipt of a Demand, the Seller, if it elects to dispute the Claim, shall deliver, within twenty-five (25) days after delivery by the Buyer of the Shareholders set forth Demand to the Seller, a written notice (a “Notice of Contention”) to the Buyer of its intent to dispute the Claim, in which case such Claim shall be a “Disputed Claim.” (d) On September 7, 2008, the Buyer shall deliver to the Seller that number of Section 8.3. The shares equal to the difference between (x) the then remaining portion of the Holdback Shares contributed and (y) the aggregate undeducted shares, if any, as calculated according to Section 8.6(f) below based on behalf of each Shareholder shall be the dollar amounts set forth in proportion any Demand received by the Seller prior to September 7, 2008. (e) Any Disputed Claim and any other dispute which may arise under this Section 8 with respect to the aggregate amount rights of Consideration the Buyer and the Seller to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares shall be settled by mutual agreement of the Buyer and the Seller. Upon receipt of a copy of a final and nonappealable order of a court of competent jurisdiction with respect to the full extent thereof. For the purpose payment of this Agreement, including without limitation the distribution all or any portion of the Holdback Shares, accompanied by a certificate from the value Seller to the effect that the order is final and nonappealable, the Buyer shall deliver the portion of each Holdback Share (the “Holdback Shares Indemnity Value”specified in such award or order (or that amount of shares as calculated according to Section 8.6(f) below) to the Seller as directed in such award or order. (f) Whenever the Buyer is entitled to deduct shares from the Holdback Shares pursuant to this Section 8, the Buyer shall be deduct that number of shares of the Buyer’s Common Stock from the Holdback Shares with a dollar value equal to the fair market value payment requested. The shares of a share of Buyer the Buyer’s Common Stock shall be valued by using the average reported closing price for such shares on the OTC Bulletin Board for the preceding fifteen (15) trading days ending two (2) trading days prior to the date such claim is resolved. The Buyer shall not deduct partial or fractional shares, but shall round down to the nearest number of whole shares obtainable based on the previous calculation. (g) The Seller shall be responsible for all taxes arising from or attributable to the Holdback Shares, except to the extent the number of Holdback Shares actually received by Seller are reduced as determined by the board a result of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Claims made under this Section 8. The Buyer Common Stock are actively traded on shall issue all Internal Revenue Service Forms 1099 (or any national securities exchange, successor forms) relating to the Holdback Shares Indemnity Value shall be determined by to and in the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution name of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)Seller.

Holdback Shares. On the Closing Date, Buyer shall withhold the (a) If any Holdback Shares are used to be retained as security for the satisfy any such indemnification obligations of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion to the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Sharesobligations, the value of each Holdback Share so used shall be deemed to be the 5-Day Average over the five consecutive trading days ending on the trading day immediately prior to the applicable claim is settled. (b) The value of the Holdback Shares, as determined in accordance with Section 8.3.10(a), shall be available to compensate the Parent Indemnified Persons for any claims by such parties for any Losses suffered or incurred by them and for which they are entitled to recovery under this ARTICLE VIII, which compensation will occur through the forfeiture and cancellation of the Holdback Shares in accordance with this Section 8.3.10. Each claim for Losses that is to be satisfied through the forfeiture of a portion or all of the Holdback Shares pursuant to this ARTICLE VIII shall be satisfied, as to each Indemnifying Party, by the forfeiture and cancellation of such Indemnifying Party’s Holdback Shares with a value equal to such Indemnifying Party’s Pro Rata Share of the Losses to be so satisfied. Until and unless the Holdback Shares are released to the Indemnifying Parties pursuant to Section 8.3.10(c), the Indemnifying Parties’ shall, and do hereby, pledge and grant a security interest in the Holdback Shares to Parent on its own behalf and on behalf of the other Indemnified Parties. Each Effective Time Holder will take all such actions to effectuate all forfeitures and cancellations of any Holdback Share in accordance with the terms of this Agreement. (c) On the 18 month anniversary of the Effective Date (the “Holdback Shares Indemnity ValueRelease Date”) shall ), the Remaining Holdback Shares, if any, less that number of Holdback Shares that is determined, in the reasonable judgment of Parent, to be equal necessary to satisfy all unsatisfied or disputed claims for indemnification delivered to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded Stockholders’ Representative on any national securities exchange, or prior to the Holdback Shares Indemnity Value Release Date (each, an “Unresolved Claim”), after taking into account any non-taxable stock dividends retained by Parent pursuant to Section 5.16.7 which shall also be retained pending resolution of all Unresolved Claims (any such shares, the “Unresolved Claim Holdback Shares”), shall be determined released by Parent to the Effective Time Holders in proportion to their Pro Rata Share of the Remaining Holdback Value. The Unresolved Claim Holdback Shares shall remain “Holdback Shares” past the Holdback Shares Release Date subject to this Section 8.3.10(c). Any Unresolved Claim Holdback Shares that are not forfeited by the average closing price per share Effective Time Holders and cancelled by Parent based on an award to Parent upon the resolution of Buyer Common Stock on all Unresolved Claims, shall be immediately released from such restrictions following resolution of such Unresolved Claims and any non- taxable stock dividends that continue to be retained by Parent pursuant to Section 5.16.7 and this Section 8.3.10(c) and not awarded to Parent upon the ten resolution of such Unresolved Claims shall be distributed by Parent to the Effective Time Holders as soon as practicable (10and in no event later than five Business Days) consecutive trading days immediately preceding the date following resolution of distribution of the such Unresolved Claims, whereupon such shares will no longer be Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a).8.4

Holdback Shares. On The Holdback Shares shall be delivered to Sellers on the Closing Holdback Release Date, subject to the terms of this Section 2.06. Without limitation to the rights and remedies of Buyer (including Buyer’s ability to withhold and set off against Milestone Payments pursuant to Section 2.03(d)), Buyer shall withhold have the Holdback Shares right to be retained as security satisfy (i) any Post-Closing Adjustment owed to it pursuant to Section 2.05, (ii) any claim for the indemnification obligations or payment of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion to the aggregate amount of Consideration damages to which such Shareholder would otherwise Buyer may be entitled under this Agreement. All claims for indemnification , (iii) any Buyer Shares issuable to Mediolanum in connection with the termination by the Company following the Closing of the Mediolanum Agreement, and (iv) any Buyer Shares issuable to Torreya pursuant to Section 8.3 below the terms of the Torreya Agreement (the “Torreya Holdback Payment” and, together with the Torreya Closing Payment and the Torreya Milestone Payment, the “Torreya Payments”), which payment shall be satisfied first deemed a Transaction Expense hereunder, in each case by deducting from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, Buyer Shares equal in value to such Post-Closing Adjustment, claim for indemnification or payment of damages, or shares issuable to Mediolanum and/or Torreya, with the value of each Holdback Buyer Share (the “Holdback Shares Indemnity Value”) shall for such purpose to be equal to the fair market value VWAP Price as of a share of Buyer Common Stock as determined by the board of directors of Buyerdate when the applicable Post-Closing Adjustment or indemnification claim becomes payable hereunder, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value such resulting per-share price shall not be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will less than $2.4725 and shall not be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)greater than $4.5917.

Holdback Shares. On The Parties acknowledge and agree that as of the date of this Agreement, (x) the Company anticipates consummating the acquisition described in Section 2.8(d) of the Company Disclosure Schedule (the “Acquisition”) and (y) in connection with such Acquisition, Parent shall hold back at the Closing Date700,000 Parent Common Shares (the “Holdback Shares”), Buyer which Holdback Shares shall withhold be held by Parent until released to the Company Equityholder or forfeited in accordance with the terms of this Section 2.8(d). (i) In the event that Company Equityholder or any of its Affiliates proposes to enter into any definitive agreements with respect to the Acquisition (or any amendment or waiver with respect thereto), (A) Company Equityholder shall give Parent reasonably advance written notice thereof, together with copies of all such definitive agreements (or amendments or waivers with respect thereto); and (B) the Parties acknowledge and agree that entry into such definitive agreements shall be subject to approval thereof by the Special Committee; provided, however, that the Special Committee’s determination of whether or not to approve the entry into such definitive agreements must be made no later than 11:59 p.m. Central time on the second Business Day after the date on which Company Equityholder provides the written notice contemplated by the foregoing clause (A). Nothing in this Section 2.8(d) shall obligate the Special Committee, Parent or any of its Affiliates (including the Surviving Corporation) to approve of the Acquisition if such Acquisition is not on terms and conditions that are substantially similar in all material respects to the terms and conditions set forth in Section 2.8(d) of the Company Disclosure Schedule, or if the board of directors or other governing body (or any committee thereof, including the Special Committee) of Parent or any of its Affiliates (including the Surviving Corporation) determines that such Acquisition is not in the best interests of such party or its stockholders, or would reasonably be expected to be inconsistent with such directors’ or managers’ fiduciary duties. The Parties acknowledge and agree that after the date of this Agreement, with respect to Company’s pursuit of new acquisitions (other than the Acquisition), all such new acquisitions shall be subject to the terms and conditions of Section 6.2. (ii) The amount (if any) of Holdback Shares to be retained as security for the indemnification obligations of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion issued and delivered to the aggregate amount Company Equityholder in respect of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share Accretion (the “Holdback Shares Indemnity ValueReleased Shares”) shall be equal to the fair market value Holdback Release Formula, as finally determined in accordance with this Section 2.8(d). For all purposes of this Agreement, the calculation of Accretion and the components used in calculating Accretion, as well as the calculation of the Released Shares to be issued and delivered to the Company Equityholder calculated using the Holdback Release Formula, shall be based solely upon the Acquisition if consummated during the period beginning after the date hereof and ending ninety (90) days after the Closing, on the terms and subject to the conditions set forth herein. No later than five (5) Business Days following the date that is ninety (90) days following the Closing, the Company Equityholder shall deliver a share statement (an “Accretion Statement”) to Parent setting forth its good faith calculation of Buyer Common Stock Accretion and the components used in calculating Accretion, in each case in reasonable detail, as well as its calculation of the amount of Released Shares to be issued and delivered to the Company Equityholder calculated using the Holdback Release Formula. Parent shall have forty-five (45) days following receipt of the Accretion Statement to review the Accretion Statement and to notify the Company Equityholder in writing of any dispute regarding any calculations set forth therein (an “Accretion Dispute Notice”), specifying the reasons for its dispute in reasonable detail. If no Accretion Dispute Notice is delivered by Parent within such forty-five (45) day period or if Parent delivers a written acceptance of the calculations set forth in the Accretion Statement within such forty-five (45) day period, then the calculations set forth in the Accretion Statement shall become final and binding on the Parties. (iii) If, following the final determination of Accretion and Released Shares in accordance with this Section 2.8(d), there remain any Holdback Shares, then the amount of any such remaining Holdback Shares to be issued and delivered to the Company Equityholder shall be determined using the Earnout Formula and in accordance with this Section 2.8(d)(iii). No later than March 15, 2023, Parent shall deliver a statement (an “Earnout Statement”) to the Company Equityholder setting forth its good faith calculation of the amount of remaining Holdback Shares (the “Earnout Shares”) to be issued and delivered to the Company Equityholder using the Earnout Formula. The Earnout Statement shall also set forth in reasonable detail Parent’s calculation of the components of the Earnout Formula. The Company Equityholder shall have forty-five (45) days following receipt of the Earnout Statement to review the Earnout Statement and to notify Parent in writing of any dispute regarding the calculations set forth therein (an “Earnout Dispute Notice”), specifying the reasons for its dispute in reasonable detail. If no Earnout Dispute Notice is delivered by the board Company Equityholder within such forty-five (45) day period or if the Company Equityholder delivers a written acceptance of directors the calculations set forth in the Earnout Statement within such forty-five (45) day period, then the calculations set forth in the Earnout Statement shall become final and binding on the Parties. (iv) In connection with Parent’s review of Buyerthe Accretion Statement, the Company Equityholder shall provide Parent and its Representatives reasonable access, during normal business hours and upon reasonable notice, to all relevant personnel, books and records of the Company Equityholder, work papers, schedules, memoranda and other documents used or prepared by the Company Equityholder in connection with its preparation of the Accretion Statement, and other relevant items reasonably requested by Parent, and the Company Equityholder shall cooperate reasonably with Parent and its Representatives in connection therewith. (v) In connection with the Company Equityholder’s review of the Earnout Statement, Parent shall provide the Company Equityholder and its Representatives reasonable access, during normal business hours and upon reasonable notice, to all relevant personnel, books and records of Parent and the Surviving Corporation, work papers, schedules, memoranda and other documents used or prepared by Parent or the Surviving Corporation in connection with its preparation of the Earnout Statement, and other relevant items reasonably requested by the Company Equityholder, and Parent and the Surviving Corporation shall cooperate reasonably with the Company Equityholder and its Representatives in connection therewith. (vi) In the event that Parent delivers an Accretion Dispute Notice or the Company Equityholder delivers an Earnout Dispute Notice (each, a “Dispute Notice,” and together, the “Dispute Notices”) in accordance with this Section 2.8(d), Parent and the Company Equityholder shall cooperate in good faith to resolve each dispute set forth in any such Dispute Notice as promptly as practicable, and, upon any such resolution, any adjustments to the Accretion Statement and/or Earnout Statement, as applicable, shall be made as agreed upon by Parent and the Company Equityholder in writing. If Parent and the Company Equityholder are unable to resolve any dispute within thirty (30) days (or such longer period as Parent and the Company Equityholder shall mutually agree in writing) of the delivery of the relevant Dispute Notice, such dispute shall be resolved by the Independent Accounting Firm, acting in good faithas an expert and not an arbitrator, at and such determination by the Independent Accounting Firm shall be final and binding on the Parties, except that (x) the Independent Accounting Firm may consider only those items and amounts (and related items and amounts) as to which Parent and the Company Equityholder have disagreed within the time periods and on the terms specified above and (y) the Independent Accounting Firm’s determination of distributionthe amount of Accretion, Released Shares and/or Earnout Shares, as applicable, may not be less than the lower, or more than the higher, of Parent’s and the Company Equityholder’s respective calculations of the applicable amount. Each of Parent and the Company Equityholder shall bear fifty percent (50%) of any expenses relating to the engagement of the Independent Accounting Firm. The Independent Accounting Firm shall be instructed to use reasonable best efforts to make its final determination within thirty (30) days of submission by the Parties of the dispute to it and, in any case, as promptly as practicable after such submission. Each of Parent and the Company Equityholder shall furnish the Independent Accounting Firm such work papers and other documents and information relating to the disputed issues as the Independent Accounting Firm shall reasonably request. A. Upon the final and binding determination of the amount of the Released Shares (whether pursuant to Section 2.8(d)(ii) or Section 2.8(d)(vi)), Parent shall issue and deliver such amount of Released Shares to the Company Equityholder within five (5) Business Days after such final and binding determination, free and clear of all Liens (other than Liens arising from applicable securities Laws) in book-entry form, together with a statement of the transfer agent of Parent certifying as to the book-entry issuance thereof. B. Upon the final and binding determination of the amount of the Earnout Shares (whether pursuant to Section 2.8(d)(iii) or Section 2.8(d)(vi)), Parent shall issue and deliver such amount of Earnout Shares to the Company Equityholder within five (5) Business Days after such final and binding determination, free and clear of all Liens (other than Liens arising from applicable securities Laws) in book-entry form, together with a statement of the transfer agent of Parent certifying as to the book-entry issuance thereof. C. For the avoidance of doubt, in no event shall the aggregate of the Released Shares and Earnout Shares exceed the amount of Holdback Shares. (viii) From and after the Closing and until such time as the final determination of the Released Shares and the Earnout Shares, if any, that are to be issued and delivered to the Company Equityholder pursuant to this Section 2.8(d), Parent shall not, and shall cause each of its Affiliates, including the Surviving Corporation, to not, without the written consent of the Company Equityholder (such consent not to be unreasonably withheld, conditioned or delayed) (any of the following, the “Prohibited Actions”): A. take any action the sole intention and purpose of which is reducing the amount of Released Shares or Earnout Shares to be delivered to the Company Equityholder; or B. voluntarily liquidate, dissolve or wind-up the affairs of the Surviving Corporation; provided, howeverthat any action or omission taken by or with the unanimous consent or approval of the Parent Board shall not be deemed to be a Prohibited Action, or taken into account for purposes of determining whether an action or omission constitutes a Prohibited Action. (ix) In the event that, following the Closing and prior to the end of the Earnout Period, (A) there occurs a sale or other disposition of all or substantially all of the assets of Parent, or a merger, consolidation, recapitalization or other transaction in which any Person and its Affiliates (other than the Company Equityholder, the Excluded Company Parties or any of their respective Affiliates), together with any Persons (other than the Company Equityholder, the Excluded Company Parties or any of their respective Affiliates) that “roll over” interests in Parent in connection with and as an integrated step of such transaction, becomes the beneficial owner, directly or indirectly, of one hundred percent (100%) of the combined voting power of all interests in Parent or any successor of Parent that beneficially owns the Company Group (this clause (A), a “Transaction Event”) or (B) (1) Parent makes a general assignment for the benefit of creditors, (2) Parent institutes any proceeding seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization or (3) any proceeding shall be instituted by any third party against Parent seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization, and an order for relief against Parent shall have been entered into by a court of competent jurisdiction in such proceeding that remains unstayed and in effect for 60 days, Parent shall issue and deliver to the Company Equityholder (and, in the case of a Transaction Event, such issuance and delivery shall take place immediately prior to the consummation of such Transaction Event) all of the remaining Holdback Shares, free and clear of all Liens (other than Liens arising from applicable securities Laws) in book-entry form, together with an executed certificate of the transfer agent of Parent certifying as to the book-entry issuance thereof. Upon issuance and delivery of remaining Holdback Shares pursuant to this Section 2.8(d)(ix), the obligations of Parent under this Section 2.8(d) shall be deemed fully satisfied and be of no further force or effect. (x) Notwithstanding anything in this Agreement to the contrary, in the event shares of Buyer any change to the Parent Common Stock are actively traded on any national Shares (or securities exchangeconvertible thereto or exchangeable or exercisable therefor) issued and outstanding following the Closing as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, exchange or readjustment of shares, issuer tender or exchange offer, or other similar transaction, the Holdback Shares Indemnity Value shall be determined equitably adjusted, without duplication, to provide the Company Equityholder the same economic effect contemplated by the average closing price per share of Buyer Common Stock on the ten this Agreement prior to such change. (10xi) consecutive trading days immediately preceding the date of distribution of Until such time as the Holdback Shares are issued and delivered pursuant to this Section 2.8(d), the Company Equityholder shall have no rights as a record or beneficial owner of such Holdback Shares. Promptly, but in including as to any event within three dividends, distributions and other earnings thereon or the right to vote such Holdback Shares. (3xii) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares The Parties acknowledge and agree that all calculations with respect to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in Holdback Shares, including Company EBITDA and Company EBITDA Delta, shall exclude the Holdback Shares will be reduced by the aggregate amount effects of any Losses which “reverse acquisition accounting” or similar accounting adjustments resulting from any Person other than Parent (including the BuyerCompany) being the “accounting acquiror” of Parent for purposes of GAAP as a result of the consummation of the Transactions. (xiii) For purposes of this Section 2.8(d) only, acting in good faith, reasonably estimates the term “Special Committee” shall mean any committee of the Parent Board (as it may be constituted from time to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3time) Business Days following final resolution comprised solely of any such pending claim in accordance with Section 8.7(a)independent directors who are independent of the Excluded Company Parties.

Holdback Shares. Subject to the terms and conditions of this Agreement, Parent shall initially refrain from issuing such number of Parent Ordinary Shares as is equal to the quotient of: (i) the Holdback Amount, divided by (ii) the Agreement Date Share Value (such number of Parent Ordinary Shares subject to issuance being referred to herein as the “Holdback Shares”). If a Parent Indemnified Person makes a claim for indemnification pursuant to this ARTICLE IX (a “Claim”) between the Closing Date and the date that is the later of: (A) eighteen (18) months thereafter at 11:59pm New York time, and (B) the Second Earn-Out Payment Date at 11:59pm New York time (the “Holdback Period”) and such Claim becomes an Agreed Claim pursuant to this ARTICLE IX, then such number of Holdback Shares as are determined by dividing the amount of Losses determined in respect of such Agreed Claim, by the Agreement Date Share Value, shall cease to be Holdback Shares subject to issuance and the number of Holdback Shares subject to issuance shall be reduced accordingly. On the Closing second Business Day following the last day of the Holdback Period (the “Release Date”), Parent shall deposit the balance of the Holdback Shares (which for the avoidance of doubt shall represent the initial number of Holdback Shares less those initial Holdback Shares that are no longer subject to issuance as Holdback Shares pursuant to the provisions of this Section 9.1) with the Paying Agent, provided that if there are any Claims which were submitted within the Holdback Period but which have not be yet become Agreed Claims as of the Release Date, Buyer shall withhold the be entitled to refrain from issuing such number of Holdback Shares as is derived from dividing the amount of such Losses as have been claimed, by the Agreement Date Share Value, until such Claim has become an Agreed Claim pursuant to this ARTICLE IX. On the second Business Day following the date that any such Claims referred to in the proviso of the immediately sentence become Agreed Claims pursuant to this ARTICLE IX, any Holdback Shares that were not released on the Release Date as a result of the proviso in the immediately preceding sentence (less any Holdback Shares (if any) that cease to be retained as security for the indemnification obligations of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder in order to satisfy any Losses for such Claims) shall be in proportion to deposited with the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereofPaying Agent. For the purpose avoidance of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchangedoubt, the Holdback Shares Indemnity Value Amount shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)not accrue interest.

Holdback Shares. On (a) The parties hereby agree that 31,000 shares of the Parent Common Stock (the "Holdback Shares"), out of the total number of shares of Parent Common Stock to be issued to the holders of Company Common Stock pursuant to the Merger and upon exercise of the Company Options and the Substitute Warrant following the Effective Time, shall be held in escrow by Parent and available for use to satisfy claims for recovery by Parent under this Article VIII and Section 1.11(e). In the event Parent is entitled to recover any amount in respect of the Adjustment Amount pursuant to Section 1.11(e) or any Losses pursuant to Section 8.2, Parent may set off such amount against the Holdback Shares. In each such event, the number of Holdback Shares deliverable by Parent to the Shareholders hereunder shall be reduced by an amount equal to the quotient obtained by dividing (i) the amount of the applicable set-off, by (ii) the Closing Date, Buyer Stock Price. Any Holdback Shares which are so applied to Parent's rights of recovery shall withhold be retained by Parent and cancelled and shall not be delivered to the Shareholders or reserved for issuance upon exercise of any assumed Company Options or the Substitute Warrant. The number of Holdback Shares to be retained as security for the indemnification obligations of applied against any recovery claim and/or released to the Shareholders set forth in of pursuant to this Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder 8.4 shall be in proportion subject to appropriate adjustments for any stock split, reverse stock split, stock dividend, recapitalization or similar event. (b) Notwithstanding the foregoing, Parent shall not be entitled to exercise any right of recovery or set-off arising under Section 8.2(a) until the aggregate amount of Consideration to Losses for which such Shareholder Parent would otherwise be entitled to recovery under this Agreement. All claims for indemnification pursuant Section 8.2(a) exceeds or is reasonably expected to Section 8.3 below exceed $50,000 (the "Basket"), at which point Parent shall be satisfied first from entitled to recovery of all such Losses, including all Losses included in reaching the Holdback Shares Basket. The foregoing limitation shall not apply to (i) any Losses arising out of fraud on the full extent thereof. For part of the purpose Company or any Shareholder, (ii) any Losses arising out of any breach of any of the representations and warranties set forth in Sections 2.2, 2.4, 2.5 or 2.26 of this Agreement, including without limitation the distribution or (iii) any right of the recovery arising under Section 1.11(e), 8.2(b) or 8.2(c) of this Agreement. (c) Any remaining Holdback Shares, after application of all set-offs and deductions provided for in this Section 8.4, less the value number of each Holdback Share Shares which may be required to satisfy any then pending claims by Parent for recovery pursuant to this Article VIII or Section 1.11(e) ("Recoverable Claims") which have not been finally resolved in accordance with the terms of this Agreement or with respect to which Parent has not yet received full recovery, plus any additional Holdback Shares to which the Shareholders are entitled pursuant to Section 1.11(e), shall be released by Parent and delivered to the Shareholders (or, as appropriate, reserved for future issuance upon exercise of then outstanding assumed Company Options and the Substitute Warrant) (pro rata in accordance with Exhibit A), subject to Section 1.5(f), within twenty (20) business days following the first anniversary of the Effective Time (the “Holdback Shares Indemnity Value”"Release Date"). (d) The amount that may be required to satisfy Recoverable Claims pending on the Release Date shall be equal to the fair market value of a share of Buyer Common Stock as reasonably determined by the board of directors of Buyer, acting Parent in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the . Any Holdback Shares Indemnity Value shall so retained by Parent shall, after application of all set-offs and deductions provided for herein, be determined released by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares Parent and delivered to the Shareholders (or, as appropriate, reserved for future issuance upon exercise of then outstanding assumed Company Options and the Substitute Warrant) (pro rata in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior Exhibit A), subject to the twelve (12) month anniversary of the Closing DateSection 1.5(f), the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days promptly following final resolution of any such pending claim in accordance with Section 8.7(a)all Recoverable Claims.

Holdback Shares. On A total of Five Hundred Thousand (500,000) shares of Common Stock (such shares, less any shares that are withheld to satisfy Assignor’s indemnity obligations as set forth in Section 10.2 below referred to as the Closing Date“Holdback Shares”), Buyer shall withhold will be issued no later than March 31, 2010 (or, if the Merger has not been completed by that date, then within ten (10) business days after the earlier to occur of the closing of the Merger or the Subsequent Closing). In the event that Assignee is a party to a merger transaction that is completed before the Holdback Shares are issued in which the Common Stock of Assignee is converted into the right to be retained as security for the indemnification obligations receive shares of the Shareholders set forth surviving corporation (or its parent) in the merger, the term “Holdback Shares” shall mean such number and kind of Section 8.3shares of stock as would be issuable in the merger with respect to the number of Holdback Shares that Assignor is entitled to receive. The portion of the Holdback Shares contributed on behalf of each Shareholder shall initially be registered in proportion the name of, and be deposited with, a person or third party institution satisfactory to Assignee as escrow agent (the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims “Escrow Agent”) as nominee for indemnification Assignor pursuant to Section 8.3 below shall be satisfied first from a customary escrow agreement. As a condition of issuing the Holdback Shares to the full extent thereofEscrow Agent as described above, Assignor agrees to execute such a customary escrow agreement as Escrow Agent and Assignee may reasonably request. For Such shares shall be beneficially owned by Assignor. During the purpose period that the Holdback Shares are held by the Escrow Agent, Assignor (and any other permitted holder of this AgreementHoldback Shares) will retain and will be able to exercise all voting, including without limitation the distribution dispositive, and other incidents of ownership of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value extent consistent with the terms and conditions of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)this Agreement.

Holdback Shares. On (a) The Holdback Shares shall serve as partial security for, and a source of recourse for, the Closing DateParent Indemnified Parties’ indemnification rights under this Section 7.07. Except for any claims of fraud or intentional misrepresentation, Buyer Parent Indemnified Parties shall withhold first seek recourse against the Holdback Shares for any and all Losses for which Parent Indemnified Parties are entitled to be retained as security for the indemnification obligations of the Shareholders set forth in of recovery under this Section 8.3. The portion of 7.07 until the Holdback Shares contributed on behalf have been retained (and will not be issued) in accordance with the terms of each Shareholder shall be this Agreement or issued and released in proportion to accordance with the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose terms of this Agreement, including without limitation as applicable. (b) Parent shall retain and not issue (and the distribution Company Stockholders will no longer be entitled to receive) Holdback Shares as a remedy for indemnifiable Losses of Parent Indemnified Parties in accordance with this Section 7.07 and subject to the other terms and conditions of this Section 7.07 and upon such forfeiture, all of such Company Stockholder’s right in and to such retained (and not issued) Holdback Shares shall terminate. (c) The Holdback Shares, less the value aggregate number of each Holdback Share (the “Holdback Shares Indemnity Value”) retained and not issued (and the Company Stockholders will no longer be entitled to receive), if any, and less the number of Holdback Shares determined in good faith by Parent as necessary to satisfy any claims of Parent Indemnified Parties that are not resolved prior to the Holdback Release Date (which number of additional Holdback Shares shall be equal to the fair market estimated of the dollar value of a share of Buyer Common Stock as determined such outstanding claim(s), divided by the board Parent Stock Value (as adjusted for any stock splits, combinations and the like of directors Parent), rounded down to the nearest whole share) (such outstanding claims, the “Outstanding Claims” and such number of BuyerHoldback Shares that are continued to be held back by Parent, acting the “Retained Holdback Shares”) shall promptly be deposited by Parent with the Exchange Agent for issuance to the Company Stockholders in good faithaccordance with Section 1.05. (d) In the event and to the extent that, at after the time Holdback Release Date, any Outstanding Claim made by any Parent Indemnified Party pursuant to this Section 7.07 is finally resolved against such Parent Indemnified Party, Parent shall promptly issue and deposit with the Exchange Agent for issuance to the Company Stockholders in accordance with Section 1.05 a number of distributionRetained Holdback Shares equal to the value of the Outstanding Claim resolved against such Parent Indemnified Party, divided by the Parent Stock Value (as adjusted for any stock splits, combinations and the like of Parent), rounded down to the nearest whole share; provided, however, that in any such issuance shall only be made to the event shares extent that the value of Buyer Common Stock are actively traded on any national securities exchange, the Retained Holdback Shares Indemnity Value shall remaining after such issuance would be determined by sufficient to cover the average closing price per share estimated value of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all Outstanding Claims that are still unresolved at such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)time.

Holdback Shares. On the Closing Date, Buyer shall withhold the If any Holdback Shares to be retained as security for the indemnification obligations of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion are deliverable to the aggregate amount of Consideration Pledgors pursuant to which such Shareholder would otherwise be entitled under the Share Exchange Agreement and in accordance with this Agreement. All claims for indemnification pursuant , (i) the Escrow Agent covenants and agrees to Section 8.3 below shall be satisfied first from execute all such instruments of transfer (including stock powers and assignment documents) as are customarily executed to evidence and consummate the transfer of the Holdback Shares to the full extent thereof. For the purpose of this AgreementPledgors, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim not done so in accordance with Section 8.7(a2, and (ii) following its receipt of the documents referenced in Section 6(i), the Company and Escrow Agent covenant and agree to cooperate with the Transfer Agent so that the Transfer Agent promptly reissues such Holdback Shares in the applicable Pledgor’s name and delivers the same as directed by such Pledgor. Until such time as (if at all) the Holdback Shares are required to be delivered pursuant to the Share Exchange Agreement and this Agreement, any dividends payable in respect of the Holdback Shares and all voting rights applicable to the Holdback Shares shall be retained by the Pledgors. Should the Escrow Agent receive dividends or voting materials, such items shall not be held by the Escrow Agent, but shall be passed immediately on to the Pledgors and shall not be invested or held for any time longer than is needed to effectively re-route such items to the Pledgors. In the event that the Escrow Agent receives a communication requiring the conversion of the Holdback Shares to cash or the exchange of the Holdback Shares for that of an acquiring company, the Escrow Agent shall solicit and follow the written instructions of the Pledgors; provided, that the cash or exchanged shares are instructed to be redeposited into the Escrow Account. The Pledgors shall be responsible for all taxes resulting from any such conversion or exchange.

Holdback Shares. On (a) If the Closing Dateoccurs, Buyer shall withhold the Holdback Shares shall be deposited with the Escrow Agent pursuant to be retained as security for Section 2.3(b) and held by the indemnification obligations Escrow Agent in escrow in accordance with the terms of this Agreement and the Shareholders set forth in of Escrow Agreement. If at any time on or prior to the Holdback Deadline Purchaser delivers to Seller and the Escrow Agent a Claim Notice that Purchaser is entitled under Section 8.3. The portion 12.3 to indemnity, payment, and reimbursement from the balance of the Holdback Shares contributed on behalf for any alleged Damages, Seller shall, within thirty (30) days after the receipt of each Shareholder shall be in proportion any such Claim Notice, at its option either deliver to Purchaser and the aggregate amount Escrow Agent (i) written instructions instructing the Escrow Agent to disburse to Purchaser a number of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to then deposited with the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be Escrow Agent equal to the fair market value quotient obtained by dividing (A) an amount equal to all or a stipulated amount of such alleged Damages set forth in such Claim Notice to such account(s) as Purchaser designates in such Claim Notice by (B) the Share Price, (ii) a share notice that Seller disputes that the members of Buyer Common Stock as determined the Purchaser Group are entitled to indemnity, payment, and reimbursement of all or any portion (which shall be stipulated in Seller’s notice) of the amount of the alleged Damages in Purchaser’s Claim Notice, or (iii) any combination of the foregoing. Failure of Seller to deliver a notice or the timely delivery of Seller’s notice stipulating that Seller disputes any portion of the amount of Damages to which Purchaser claims the member of the Purchaser Group are entitled shall constitute or be deemed to constitute notice that such amount in dispute shall not be released by the board Escrow Agent to Purchaser and that the Escrow Agent shall continue to hold the applicable Holdback Shares until the dispute has been fully resolved by final non-appealable court order, arbitrator’s decision, settlement, or otherwise. (b) If Seller either (i) timely delivers to Purchaser and the Escrow Agent a notice that Seller does not dispute any of directors the alleged Damages specified in Purchaser’s Claim Notice, or (ii) timely delivers a notice that it disputes only a portion of Buyerthe Damages alleged in Purchaser’s Claim Notice, acting in good faith, at the time of distribution; provided, however, that then (A) in the event shares case of Buyer Common Stock are actively traded on any national securities exchangesubpart (i) of this Section 12.7(b), Seller shall be deemed to have authorized the Escrow Agent to disburse to Purchaser a number of Holdback Shares Indemnity Value (together with any dividends, distributions, earnings or other amounts accrued thereon) equal to the quotient obtained by dividing (x) the entire amount of the alleged Damages specified in the applicable Claim Notice by (y) the Share Price and (B) in the case of subpart (ii) of this Section 12.7(b), Seller shall be determined deemed to have authorized the Escrow Agent to disburse to Purchaser a number of Holdback Shares equal to the quotient obtained by dividing (x) the average closing price per share amount of Buyer Common Stock on the ten alleged Damages specified in such Seller’s notice that are not in dispute by (10y) consecutive trading days immediately preceding the Share Price. (c) Promptly after the date of distribution of that is six (6) months after the Holdback Shares. Promptly, Closing Date (but in any no event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within more than three (3) Business Days following final resolution thereafter), Purchaser and Seller shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse to Seller, an amount of Holdback Shares equal to positive amount, if any, of (i) Five Hundred Seventy-Six Thousand Five Hundred and One (576,501) shares of Common Stock (together with any such pending claim dividends, distributions, earnings or other amounts accrued thereon) minus (y) a number of Holdback Shares equal to the quotient obtained by dividing (A) all undisbursed or unpaid alleged Damages required to be disbursed to Purchaser or required to be retained by the Escrow Agent in accordance with Section 8.7(a12.7(b) by (B) the Share Price; it being understood, that the Escrow Agent shall retain at least Five Hundred Seventy-Six Thousand Five Hundred and One (576,501) shares of Common Stock following the disbursement to Seller contemplated above. (d) Promptly after the Holdback Deadline (but in no event more than three (3) Business Days thereafter), Purchaser and Seller shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse to Seller, an amount of Holdback Shares equal to the positive amount, if any, of (i) the remainder of the Holdback Shares (together with any dividends, distributions, earnings or other amounts accrued thereon) minus (y) a number of Holdback Shares equal to the quotient obtained by dividing (A) all undisbursed or unpaid alleged Damages required to be disbursed to Purchaser or required to be retained by the Escrow Agent in accordance with Section 12.7(b) by (B) the Share Price. Upon resolution of each such dispute, the Parties shall execute and deliver joint written instructions to the Escrow Agent for the release (1) to Purchaser a number of Holdback Shares (together with any dividends, distributions, earnings or other amounts accrued thereon) equal to the quotient obtained by dividing (x) any amounts to which Purchaser is entitled upon resolution of such dispute by (y) the Share Price and (2) to Seller a number of Holdback Shares (together with any dividends, distributions, earnings or other amounts accrued thereon) equal to the quotient obtained by dividing (x) all remaining amounts subject to such dispute by (y) the Share Price; provided, that the Escrow Agent shall at all times retain a number of Holdback Shares equal to the quotient obtained by dividing (x) the aggregate amount of all undisbursed or unpaid alleged Damages required to be disbursed to Purchaser or required to be retained by Escrow Agent in accordance with Section 12.7(b) by (y) the Share Price. (e) Notwithstanding anything to the contrary contained in this Section 12.7, if at any time Purchaser is entitled to receipt of any Holdback Shares in accordance with this Section 12.7, Seller may elect, at its sole option, to pay to Purchaser the amount of Damages to which Purchaser is entitled under this Article 12 by wire transfer of immediately available funds to such account(s) as Purchaser designates in such Claim Notice (in lieu of Purchaser’s receipt of such Holdback Shares), in which event (i) such Holdback Shares shall be not be released from the escrow account to Purchaser and (ii) the Parties shall execute and deliver joint written instructions to the Escrow Agent for the release to Seller of a number of Holdback Shares equal to the quotient obtained by dividing (x) the amount of such Damages by (y) the Share Price. (f) Notwithstanding anything to the contrary contained herein, no fractional Holdback Shares shall be disbursed by the Escrow Agent pursuant to this Section 12.7 or the Escrow Agreement. In lieu of the disbursement of any such fractional Holdback Share, the Party owing the obligation in respect of which any such fractional Holdback Share would otherwise be released shall make payment to the Person to whom such fractional Holdback Share would otherwise be disbursed in cash in an amount determined by multiplying (I) the Share Price by (II) the fraction of a share (rounded to the nearest hundredth when expressed in decimal form) of Holdback Share such Person would otherwise be entitled to receive pursuant hereto.

Holdback Shares. (a) From and after the Closing, until all of the Holdback Shares have been cancelled or released pursuant to this Section 8.10, Parent will be entitled to reimbursement (on behalf of the Parent Indemnitees) out of the Holdback Shares for any and all Losses incurred by the Parent Indemnitees which are subject to indemnification by the Holders pursuant to this Article 8. (b) Parent, on behalf of a Parent Indemnitee suffering a Loss, shall provide written notice that takes into account the limitations set forth in this Article 8 (a “Claims Notice”) to the Representative specifying (i) in reasonable detail (including specific reference to the provision(s) of this Agreement giving rise to the Losses) the nature and dollar amount of any claim (a “Claim”) it may have, (ii) the aggregate dollar amount of Losses sustained or estimated to be sustained by the Parent Indemnified Parties as a result of such Claim and (iii) the number of Holdback Shares to be released to Parent, on behalf of such Parent Indemnitees with respect to such Losses (which such number of shares shall equal the amount of such Losses, divided by the closing price of the Parent Shares on the date of the date of such Claims Notice). In the case of any estimated Losses contained in a Claims Notice, Parent shall provide a subsequent Claims Notice once such Losses have been finally determined. (c) If the Representative gives written notice to Parent disputing any Claim (a “Counter Notice”) within 15 calendar days following receipt by the Representative of the Claims Notice regarding such Claim, such Claim (each, a “Disputed Claim”) shall be resolved as provided in this Section 8.10. If no Counter Notice is received by Parent within such 15 calendar day period, then the amount of the Loss and the number of Holdback Shares as set forth in its Claims Notice will be deemed established for purposes of this Agreement and Parent shall instruct the Transfer Agent to release to Parent, on behalf of the Parent Indemnitees suffering the applicable Loss, the number of Parent Shares set forth in the Claims Notice from the Holdback Shares. (d) If the Representative delivers a Counter Notice, such Counter Notice (and the dispute described therein) must be settled either: (i) by mutual agreement of the Representative and Parent or (ii) final, non-appealable order of a court or a final, non-appealable arbitration decision. Parent and the Representative shall deliver written instructions to the Transfer Agent directing the release of Holdback Shares in accordance with any such mutual agreement or order or decision within two business days of such agreement or entry of such order or decisions. (e) On the date that is eighteen months after the Closing Date, Buyer Parent and the Representative will deliver a joint written instruction to the Transfer Agent, directing the Transfer Agent to reflect that each Holder shall withhold the have been conveyed a number of Holdback Shares (rounded down to be retained as security the nearest share) equal to (i) (A) the number of Holdback Shares then remaining, minus (B) the aggregate number of all Pending Claim Shares, multiplied by (ii) such Holder’s Proportionate Share. “Pending Claim Shares” means, for each Disputed Claim and for each Claim delivered in a Claims Notice before the indemnification obligations date that is eighteen months after the Closing Date for which the Representative has not provided a Dispute Notice and for which Parent has not received payment, (y) the amount of such claim, divided by (z) the closing price of the Shareholders set forth in of Section 8.3. The portion of the Holdback Parent Shares contributed on behalf of each Shareholder shall be in proportion to the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding date the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares Claims Notice with respect to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)Claim was given.

Holdback Shares. On The Parties acknowledge and agree that as of the date of this Agreement, (x) the Company anticipates consummating the acquisitions described in Section 2.8(d) of the Company Disclosure Schedule (the “Acquisitions”) and (y) in connection with such Acquisitions, Parent shall hold back at the Closing Date1,000,000 Parent Common Shares (the “Holdback Shares”), Buyer which Holdback Shares shall withhold be held by Parent until released to the Company Stockholder or forfeited in accordance with the terms of this Section 2.8(d). (i) In the event that Company Stockholder or any of its Affiliates proposes to enter into any definitive agreements with respect to an Acquisition (or any amendment or waiver with respect thereto), (A) Company Stockholder shall give Parent reasonably advance written notice thereof, together with copies of all such definitive agreements (or amendments or waivers with respect thereto); and (B) the Parties acknowledge and agree that entry into such definitive agreements shall be subject to approval thereof by the Special Committee; provided, however, that the Special Committee’s determination of whether or not to approve the entry into such definitive agreements must be made no later than 11:59 p.m. Central time on the second Business Day after the date on which Company Stockholder provides the written notice contemplated by the foregoing clause (A). Nothing in this Section 2.8(d) shall obligate the Special Committee, Parent or any of its Affiliates (including the Surviving Corporation) to approve of any Acquisition if such Acquisition is not on terms and conditions that are substantially similar in all material respects to the terms and conditions set forth in Section 2.8(d) of the Company Disclosure Schedule, or if the board of directors or other governing body (or any committee thereof, including the Special Committee) of Parent or any of its Affiliates (including the Surviving Corporation) determines that such Acquisition is not in the best interests of such party or its stockholders, or would reasonably be expected to be inconsistent with such directors’ or managers’ fiduciary duties. The Parties acknowledge and agree that after the date of this Agreement, with respect to Company’s pursuit of new acquisitions (other than the Acquisitions), all such new acquisitions shall be subject to the terms and conditions of Section 6.2. (ii) The amount (if any) of Holdback Shares to be retained as security for the indemnification obligations of the Shareholders set forth in of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion issued and delivered to the aggregate amount Company Stockholder in respect of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share Accretion (the “Holdback Shares Indemnity ValueReleased Shares”) shall be equal to the fair market value Holdback Release Formula, as finally determined in accordance with this Section 2.8(d). For all purposes of this Agreement, the calculation of Accretion and the components used in calculating Accretion, as well as the calculation of the Released Shares to be issued and delivered to the Company Stockholder calculated using the Holdback Release Formula, shall be based solely upon Acquisitions consummated during the period beginning after the date hereof and ending ninety (90) days after the Closing, on the terms and subject to the conditions set forth herein. No later than five (5) Business Days following the date that is ninety (90) days following the Closing, the Company Stockholder shall deliver a share statement (an “Accretion Statement”) to Parent setting forth its good faith calculation of Buyer Common Stock Accretion and the components used in calculating Accretion, in each case in reasonable detail, as determined well as its calculation of the amount of Released Shares to be issued and delivered to the Company Stockholder calculated using the Holdback Release Formula. Parent shall have forty-five (45) days following receipt of the Accretion Statement to review the Accretion Statement and to notify the Company Stockholder in writing of any dispute regarding any calculations set forth therein (an “Accretion Dispute Notice”), specifying the reasons for its dispute in reasonable detail. If no Accretion Dispute Notice is delivered by Parent within such forty-five (45) day period or if Parent delivers a written acceptance of the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that calculations set forth in the event shares of Buyer Common Stock are actively traded on any national securities exchangeAccretion Statement within such forty-five (45) day period, then the Holdback Shares Indemnity Value calculations set forth in the Accretion Statement shall be determined by the average closing price per share of Buyer Common Stock become final and binding on the ten Parties. (10iii) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business DaysIf, following the twelve (12) month anniversary final determination of Accretion and Released Shares in accordance with this Section 2.8(d), there remain any Holdback Shares, then the Closing Date, Buyer will release the amount of any such remaining Holdback Shares to be issued and delivered to the Shareholders Company Stockholder shall be determined using the Earnout Formula and in accordance with their respective Pro Rata Sharethis Section 2.8(d)(iii). To the extent any Buyer Indemnitee has made No later than March 15, 2023, Parent shall deliver a claim for indemnification prior statement (an “Earnout Statement”) to the twelve (12) month anniversary Company Stockholder setting forth its good faith calculation of the Closing Dateamount of remaining Holdback Shares (the “Earnout Shares”) to be issued and delivered to the Company Stockholder using the Earnout Formula. The Earnout Statement shall also set forth in reasonable detail Parent’s calculation of the components of the Earnout Formula. The Company Stockholder shall have forty-five (45) days following receipt of the Earnout Statement to review the Earnout Statement and to notify Parent in writing of any dispute regarding the calculations set forth therein (an “Earnout Dispute Notice”), specifying the reasons for its dispute in reasonable detail. If no Earnout Dispute Notice is delivered by the Company Stockholder within such forty-five (45) day period or if the Company Stockholder delivers a written acceptance of the calculations set forth in the Earnout Statement within such forty-five (45) day period, then the calculations set forth in the Earnout Statement shall become final and binding on the Parties. (iv) In connection with Parent’s review of the Accretion Statement, the release Company Stockholder shall provide Parent and its Representatives reasonable access, during normal business hours and upon reasonable notice, to all relevant personnel, books and records of the Company Stockholder, work papers, schedules, memoranda and other documents used or prepared by the Company Stockholder in connection with its preparation of the Accretion Statement, and other relevant items reasonably requested by Parent, and the Company Stockholder shall cooperate reasonably with Parent and its Representatives in connection therewith. (v) In connection with the Company Stockholder’s review of the Earnout Statement, Parent shall provide the Company Stockholder and its Representatives reasonable access, during normal business hours and upon reasonable notice, to all relevant personnel, books and records of Parent and the Surviving Corporation, work papers, schedules, memoranda and other documents used or prepared by Parent or the Surviving Corporation in connection with its preparation of the Earnout Statement, and other relevant items reasonably requested by the Company Stockholder, and Parent and the Surviving Corporation shall cooperate reasonably with the Company Stockholder and its Representatives in connection therewith. (vi) In the event that Parent delivers an Accretion Dispute Notice or the Company Stockholder delivers an Earnout Dispute Notice (each, a “Dispute Notice,” and together, the “Dispute Notices”) in accordance with this Section 2.8(d), Parent and the Company Stockholder shall cooperate in good faith to resolve each dispute set forth in any such Dispute Notice as promptly as practicable, and, upon any such resolution, any adjustments to the Accretion Statement and/or Earnout Statement, as applicable, shall be made as agreed upon by Parent and the Company Stockholder in writing. If Parent and the Company Stockholder are unable to resolve any dispute within thirty (30) days (or such longer period as Parent and the Company Stockholder shall mutually agree in writing) of the delivery of the relevant Dispute Notice, such dispute shall be resolved by the Independent Accounting Firm, acting as an expert and not an arbitrator, and such determination by the Independent Accounting Firm shall be final and binding on the Parties, except that (x) the Independent Accounting Firm may consider only those items and amounts (and related items and amounts) as to which Parent and the Company Stockholder have disagreed within the time periods and on the terms specified above and (y) the Independent Accounting Firm’s determination of the amount of Accretion, Released Shares and/or Earnout Shares, as applicable, may not be less than the lower, or more than the higher, of Parent’s and the Company Stockholder’s respective calculations of the applicable amount. Each of Parent and the Company Stockholder shall bear fifty percent (50%) of any shares then remaining in expenses relating to the Holdback Shares will engagement of the Independent Accounting Firm. The Independent Accounting Firm shall be reduced instructed to use reasonable best efforts to make its final determination within thirty (30) days of submission by the aggregate Parties of the dispute to it and, in any case, as promptly as practicable after such submission. Each of Parent and the Company Stockholder shall furnish the Independent Accounting Firm such work papers and other documents and information relating to the disputed issues as the Independent Accounting Firm shall reasonably request. A. Upon the final and binding determination of the amount of any Losses which the BuyerReleased Shares (whether pursuant to Section 2.8(d)(ii) or Section 2.8(d)(vi)), acting in good faith, reasonably estimates Parent shall issue and deliver such amount of Released Shares to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released the Company Stockholder within three five (35) Business Days following after such final resolution and binding determination, free and clear of any all Liens (other than Liens arising from applicable securities Laws) in book-entry form, together with a statement of the transfer agent of Parent certifying as to the book-entry issuance thereof. B. Upon the final and binding determination of the amount of the Earnout Shares (whether pursuant to Section 2.8(d)(iii) or Section 2.8(d)(vi)), Parent shall issue and deliver such pending claim amount of Earnout Shares to the Company Stockholder within five (5) Business Days after such final and binding determination, free and clear of all Liens (other than Liens arising from applicable securities Laws) in accordance book-entry form, together with Section 8.7(a)a statement of the transfer agent of Parent certifying as to the book-entry issuance thereof. C. For the avoidance of doubt, in no event shall the aggregate of the Released Shares and Earnout Shares exceed the amount of Holdback Shares.

Holdback Shares. On (a) Buyer will hold the Holdback Shares, as security for Seller’s obligations under Section 7.02, until the first anniversary of the Closing (the “Holdback Termination Date”). Subject to the terms hereof, Seller will have all the rights of a stockholder with respect to the Holdback Shares, including without limitation, the right to vote the Holdback Shares and receive any cash dividends declared thereon. (b) If at any time on or prior to the Holdback Termination Date, Buyer shall withhold (i) believes in good faith that any Indemnified Party is entitled to payment or that payment should be made to a third party pursuant to the Holdback Shares to be retained as security for the indemnification obligations of the Shareholders set forth in terms of Section 8.3. The portion of the Holdback Shares contributed on behalf of each Shareholder shall be in proportion 7.02, and (ii) desires to the aggregate amount of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims make a claim for indemnification pursuant to Section 8.3 below shall be satisfied first payment from the Holdback Shares in connection therewith, then Buyer shall give written notice of such claim (a “Payment Notice”) to Seller, stating in general terms the events or circumstances which are the basis for and amount (to the full extent thereofdetermined) of such claim. For If Seller objects to such claim, Seller shall give written notice of such objection to Buyer within 30 days after the purpose date of this Agreement, including without limitation the distribution Seller’s receipt of the Holdback SharesPayment Notice served either by certified mail, the value of each Holdback Share express mail or personal service (the “Holdback Shares Indemnity ValueObjection Period”) ), and shall state the basis for such objection in reasonable detail. If no objection to Buyer’s claim is made by Seller within the Objection Period, the claim set forth in the Payment Notice shall be equal deemed approved and accepted by Seller and Buyer will be entitled to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, reclaim the Holdback Shares Indemnity Value shall in satisfaction of the claim. Any Holdback Shares distributed to Buyer in satisfaction of a claim under this Section 2.09 will be determined by valued at the volume-weighted average closing price per share trading prices of Buyer Common Stock on the ten (10) consecutive Parent Shares for the 90 trading days immediately preceding the date day they are distributed. If an objection to Buyer’s claim is made by Seller within the Objection Period, Buyer may initiate an arbitration proceeding under Section 9.05 hereof to resolve the claim within 60 days following its receipt of distribution Seller’s written objection. If Buyer fails to initiate an arbitration proceeding within such 60-day period, it will be deemed to have abandoned the claim and released its rights with respect to the specific subject matter of such claim (c) Buyer will hold, distribute and/or reclaim any remaining Holdback Shares (after deduction of any amounts withdrawn and applied by Buyer pursuant to Section 2.09(b)) in accordance with the following: (i) If on the Holdback SharesTermination Date there is any pending indemnification claim(s) asserted by Buyer or Parent under Article VII (a “Pending Claim”), including (without limitation) any claim which Seller has objected to and Buyer has not abandoned pursuant to Section 2.09(b), a number of Holdback Shares reasonably anticipated by Buyer to be necessary to satisfy such claim will be retained by Buyer until such claim is resolved. PromptlyOn the Holdback Termination Date, but in any event within three the Buyer will distribute the remaining Holdback Shares less the amount reserved for Pending Claims to Seller. (3ii) Business Days, following If on the twelve (12) month anniversary of the Closing DateHoldback Termination Date there is no Pending Claim, Buyer will release distribute the remaining Holdback Shares to Seller. (iii) Following the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Holdback Termination Date, the release for Pending Claims which are adjudicated or determined by arbitration in favor of any shares then remaining in Buyer or Parent, Buyer will entitled to reclaim the Holdback Shares in satisfaction of the claim. When no Pending Claims remain following the Holdback Termination Date, Buyer will be reduced by distribute the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days remaining Holdback Shares following final resolution of any such pending claim in accordance with Section 8.7(a)the Pending Claims existing on the Holdback Termination Date to Seller.

Holdback Shares. On 3.2.1. Out of the Closing DateShare Consideration, 1,000,000 shares of Buyer Stock (the “Holdback Shares”) shall withhold be delivered to Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP (the “Escrow Agent”) pursuant to the terms and conditions of the Escrow Agreement attached as Exhibit D hereto (the “Escrow Agreement”). For as long as the Holdback Shares remain in Escrow, the Escrow Agent shall vote, execute written instruments and/or exercise any other rights of holders in connection with the Holdback Shares (other than any rights to sell, transfer or otherwise dispose of any interest therein) pursuant to the written instructions of the Seller, all in accordance with the provisions of the Escrow Agreement. 3.2.2. All dividends, bonus shares, options or other distributions (collectively, “Distributions”) to shareholders as may be declared by Buyer in respect of the Holdback Shares shall be paid, issued or distributed to the Escrow Agent, who shall hold them until such time that the Holdback Shares are released from Escrow as herein provided (all such Distributions shall be treated hereunder identically to the Holdback Shares to which they are attributable). 3.2.3. In the event that during the full four (4) consecutive quarters following the Closing Date (the “Escrow Period”) the financial statements of Buyer reflect gross sales, as defined according to US GAAP, related to the Business, as reflected in Buyer’s consolidated financial statements and without including revenues from Qualmax’s other businesses (the “Business Revenues”), equal, in aggregate, to Six Million US Dollars (US$ 6,000,000) or more (a “Triggering Event”), then the Holdback Shares (including any Distributions related thereto) shall be retained as security for transferred by the indemnification obligations Escrow Agent to the Seller in accordance with the provisions of the Shareholders set forth in of Section 8.3Escrow Agreement. The portion In the event that Business Revenues during the Escrow Period amount to less than US$4,000,000 the Buyer shall be entitled to receive all of the Holdback Shares contributed on behalf of each Shareholder from the Escrow Agent. For every $100,000 deficit in Business Revenues below $6,000,000, 50,000 Holdback Shares shall be in proportion transferred by the Escrow Agent to the aggregate amount Buyer and the remainder of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares shall be transferred by the Escrow Agent to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal to the fair market value of a share of Buyer Common Stock as determined by the board of directors of Buyer, acting in good faith, at the time of distribution; provided, however, that in the event shares of Buyer Common Stock are actively traded on any national securities exchange, the Holdback Shares Indemnity Value shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)Seller.

Holdback Shares. On The maximum number of shares of Omnis Common Stock into which PickAx Common Stock is exchangeable pursuant to Section 3.1(b) above shall be referred to herein as the "Maximum Shares". Ninety percent (90%) of the Maximum Shares shall be issued to the PickAx stockholders as of the Effective Time pursuant to Section 3.1(g) hereof (the "Closing Shares"). With respect to the remaining ten percent (10%) of the Maximum Shares (the "Holdback Shares"), such shares shall be issued to the PickAx stockholders as follows: (i) The Holdback Shares shall be issued in the respective names of the PickAx stockholders pursuant to Section 3.1(b) hereof and delivered to Union Bank of California, N.A. (the "Escrow Agent") at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention Corporate Trust Department. The parties agree that the Holdback Shares shall be held in escrow until release of such shares is authorized by the Board of Directors of Omnis pursuant to the terms hereof. (ii) The combined gross revenues of Omnis and the Surviving Corporation, on a consolidated basis, for the period (the "Earn Out Measurement Period") beginning on the first day of the first full month after the Effective Time and ending on the first anniversary of such date (the "Earn Out Date") are referred to herein as the "Earn Out Revenues." All Earn Out Revenues shall be computed pursuant to GAAP applied on a consistent basis. (iii) If the Earn Out Revenues during or for the Earn Out Measurement Period are at least Twenty Five Million Dollars ($25,000,000) (the "Target Earn Out"), Buyer the Board of Directors of Omnis shall withhold provide written instructions to its escrow agent to transfer to the PickAx stockholders the certificates for all of the Holdback Shares, within thirty (30) days after the date on which the Earn Out Revenues first equal (or exceed) the Target Earn Out and subject to Section 3.2 hereof. (iv) If the Earn Out Revenues for the Earn Out Measurement Period are less than Twenty Two Million Five Hundred Thousand Dollars ($22,500,000) (the "Minimum Earn Out"), the Holdback Shares shall be cancelled as of the Earn Out Date by virtue of this Agreement and without any further action on the part of Omnis or any other party and all of the shares of Common Stock represented by the Holdback Shares thereupon shall be eligible for reissuance by Omnis. (v) If the Earn Out Revenues are greater than the Minimum Earn Out and less than the Target Earn Out for the Earn Out Measurement Period, Omnis shall (A) provide written instructions to its escrow agent to transfer to the PickAx stockholders within thirty (30) days after the Earn Out Date certificates for the number of the Holdback Shares computed using the following formula, subject to Section 3.2 hereof: X = ((A / B) x C) - D Where: X = The aggregate number of Holdback Shares to be retained as security for issued to the indemnification obligations PickAx stockholders, A = The Earn Out Revenues, B = The Target Earn Out, C = The Maximum Shares, and D = The total number of the Shareholders set forth in of Section 8.3. The Closing Shares; and (B) the portion of the Holdback Shares contributed on behalf of each Shareholder not issued or issuable to the PickAx stockholders pursuant to the preceding clause (A) shall be cancelled as of the Earn Out Date by virtue of this Agreement and without any further action on the part of Omnis or any other party and all of the shares of Common Stock represented by such Holdback Shares thereupon shall be eligible for reissuance by Omnis. In such event Omnis shall promptly notify each of the PickAx stockholders in proportion writing at their last address known to Omnis (a "Cancellation Notice") of such cancellation of such Holdback Shares hereunder. (vi) Notwithstanding any of the foregoing provisions to the aggregate amount contrary, all of Consideration to which such Shareholder would otherwise be entitled under this Agreement. All claims for indemnification pursuant to Section 8.3 below shall be satisfied first from the Holdback Shares to the full extent thereof. For the purpose of this Agreement, including without limitation the distribution shall be security for and none of the Holdback Shares, the value of each Holdback Share (the “Holdback Shares Indemnity Value”) shall be equal transferred to any of the fair market value PickAx stockholders until the discharge of a share the rights and obligations of Buyer Common Stock the PickAx stockholders and Omnis as determined expressly provided by the board of directors of Buyer, acting in good faith, at the time of distributionSection 11.2 hereof; provided, however, that and in the event shares of Buyer Common Stock are actively traded on any national securities exchange, conflict the Holdback Shares Indemnity Value provisions of Section 11.2 shall be determined by the average closing price per share of Buyer Common Stock on the ten (10) consecutive trading days immediately preceding the date of distribution of the Holdback Shares. Promptly, but in any event within three (3) Business Days, following the twelve (12) month anniversary of the Closing Date, Buyer will release the remaining Holdback Shares to the Shareholders in accordance with their respective Pro Rata Share. To the extent any Buyer Indemnitee has made a claim for indemnification prior to the twelve (12) month anniversary of the Closing Date, the release of any shares then remaining in the Holdback Shares will be reduced by the aggregate amount of any Losses which the Buyer, acting in good faith, reasonably estimates to have been incurred or reasonably estimated to be incurred by a Buyer Indemnitee with regard to all such pending claims. Any funds retained will be released within three (3) Business Days following final resolution of any such pending claim in accordance with Section 8.7(a)controlling.