Common use of Indemnification Claims Procedure Clause in Contracts

Indemnification Claims Procedure. (a) Purchaser, acting through the current or former members of Purchaser’s Board of Directors who have been appointed by Purchaser to take all necessary actions and make all decisions on behalf of Purchaser with respect to its rights to indemnification under Article VII of the Purchase Agreement (the “Committee”), may make a claim for indemnification pursuant to the Purchase Agreement (“Indemnification Claim”) against the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to Shareholder (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Purchase Agreement which it asserts has been breached or otherwise entitles Purchaser to indemnification and (ii) in reasonable detail, the nature and dollar amount of any Indemnification Claim. The Committee also shall deliver to the Escrow Agent (with a copy to Shareholder), concurrently with its delivery to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to Shareholder. (b) If Shareholder shall give a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within 30 days following the date of receipt (as specified in the Committee’s certification) by Shareholder of a copy of the Notice, disputing whether the Indemnification Claim is indemnifiable under the Purchase Agreement, the Committee and Shareholder shall attempt to resolve such dispute by voluntary settlement as provided in Section 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from Shareholder within such 30-day period, the Indemnification Claim shall be deemed to be an Established Claim (as hereinafter defined) for purposes of this Agreement. (c) If Shareholder delivers a Counter Notice to the Escrow Agent, the Committee and Shareholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given. If the Committee and Shareholder shall reach a settlement with respect to any such dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee and Shareholder shall be unable to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to Section 2(d) below. (d) If the Committee and Shareholder cannot resolve a dispute prior to expiration of the 60-day period referred to in Section 2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) to arbitration as set forth in Section 7 hereof. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Purchaser by settlement pursuant to Section 2(c) above, resulting in a dollar award to Purchaser, (iii) Indemnification Claim established by the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to Purchaser, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and Shareholder have jointly notified the Escrow Agent has been settled in accordance with the provisions of the Purchase Agreement. (i) Promptly after an Indemnification Claim becomes an Established Claim, the Committee and Shareholder shall jointly deliver a notice to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay to Purchaser, and the Escrow Agent promptly shall pay to Purchaser, an amount equal to the aggregate dollar amount of the Established Claim (or, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund). (ii) Payment of an Established Claim shall be made from Escrow Shares pro rata from the account maintained on behalf of each Owner. For purposes of each payment, such shares shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out of the Escrow Fund that number of Purchaser Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve the Escrow Agent. Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata portion of the aggregate number of shares specified in the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt of the share certificates and share transfer assignments, Purchaser shall deliver to the Escrow Agent new certificates representing the number of shares owned by each Owner after such payment. The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Purchaser Stock may be made notwithstanding any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior to (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Date.

Indemnification Claims Procedure. (a) PurchaserIn case any claim is made by a third party as to which the indemnified party may be entitled to seek indemnity from the indemnifying party under this Article VIII, acting through the current indemnified party shall give the indemnifying party timely notice of such claim and the opportunity to defend or former members of Purchaser’s Board of Directors who have been appointed by Purchaser to take all necessary actions and make all decisions on behalf of Purchaser with respect to its rights to indemnification under Article VII of the Purchase Agreement (the “Committee”), may make a claim for indemnification pursuant compromise such claim. Such notice shall be given to the Purchase Agreement (“Indemnification Claim”) against indemnifying party in writing and shall describe the Escrow Shares claim or claims involved and the indemnifying party shall have seven days to elect in writing whether or not to assume the Escrow Fund by giving notice (a “Notice”) defense of such claim. If the indemnifying party elects to Shareholder (with a copy defend such claim, the indemnifying party may use such counsel as they designate and the indemnified party shall have no duty to participate in such defense other than to make the services of their directors, officers and employees available to the Escrow Agent) specifying (i) indemnifying party for the covenantpurpose of supplying information and testimony, representation, warranty, agreement, undertaking or obligation contained in and the Purchase Agreement which it asserts indemnifying party shall reimburse the indemnified party for out-of-pocket expenses incurred by them. Where the indemnifying party has been breached or otherwise entitles Purchaser elected to indemnification and (ii) in reasonable detaildefend such claim, the nature and dollar indemnifying party shall pay in full the amount of any Indemnification Claim. The Committee also shall deliver to the Escrow Agent (with a copy to Shareholder), concurrently with its delivery to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to Shareholder. (b) If Shareholder shall give a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within 30 days following the date of receipt (as specified in the Committee’s certification) by Shareholder of a copy of the Notice, disputing whether the Indemnification Claim is indemnifiable under the Purchase Agreement, the Committee and Shareholder shall attempt to resolve such dispute by voluntary settlement as provided in Section 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received or judgment payable by the Escrow Agent from Shareholder within such 30-day period, the Indemnification Claim shall be deemed to be an Established Claim (as hereinafter defined) for purposes of this Agreement. (c) If Shareholder delivers a Counter Notice to the Escrow Agent, the Committee and Shareholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given. If the Committee and Shareholder shall reach a settlement with respect to any such dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee and Shareholder shall be unable to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to Section 2(d) below. (d) If the Committee and Shareholder cannot resolve a dispute prior to expiration of the 60-day period referred to in Section 2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) to arbitration as set forth in Section 7 hereof. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Purchaser by settlement pursuant to Section 2(c) above, resulting in a dollar award to Purchaser, (iii) Indemnification Claim established by the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to Purchaser, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and Shareholder have jointly notified the Escrow Agent has been settled in accordance with the provisions of the Purchase Agreement. (i) Promptly after an Indemnification Claim becomes an Established Claim, the Committee and Shareholder shall jointly deliver a notice to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay to Purchaserindemnified party, and the Escrow Agent promptly indemnified party may require the indemnifying party to deposit in escrow the amount of any proposed settlement as a condition of their consent to such settlement. The indemnifying party shall pay to Purchaserall fees and costs of counsel selected by them for the defense of any such claims. Any recovery obtained on any counterclaims, an amount equal cross-claims, third party claims or other rights over asserted by the indemnifying party in connection with any such claim shall inure to the aggregate dollar amount benefit of the Established Claim (orindemnified party, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund). (ii) Payment of except as to an Established Claim shall be made from Escrow Shares pro rata from the account maintained on behalf of each Owner. For purposes of each payment, such shares shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out of the Escrow Fund that number of Purchaser Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve the Escrow Agent. Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata appropriate portion of the aggregate number of shares specified in the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner fees and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt expenses of the share certificates and share transfer assignmentsindemnifying party’s counsel reasonably incurred in connection with such counterclaim, Purchaser shall deliver to the Escrow Agent new certificates representing the number of shares owned by each Owner after such payment. The parties hereto (cross-claim, third party claim or other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Purchaser Stock may be made notwithstanding any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior to (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Dateover.

Indemnification Claims Procedure. (a) Purchaser, acting through Any Notice of Indemnification Claim delivered pursuant to Section 7A(iii) shall set forth: (a) the current or former members of Purchaser’s Board of Directors who have been appointed by Purchaser to take all necessary actions and make all decisions on behalf of Purchaser with respect to its rights to indemnification under Article VII basis of the Purchase Agreement indemnification claim; (b) a description of the “Committee”), may make a claim for indemnification pursuant facts and circumstances giving rise to the Purchase Agreement indemnification claim; and (“Indemnification Claim”c) against if known (and in any event without prejudice to asserting additional Losses if they are incurred or reasonably anticipated, in which case the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to Shareholder (with a copy to the Escrow Agent) specifying (iClaimed Amount, as defined below, can be appropriately increased) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Purchase Agreement which it asserts has been breached or otherwise entitles Purchaser to indemnification and (ii) in reasonable detail, the nature and maximum aggregate dollar amount of any Indemnification Claim. The Committee also shall deliver the Losses that have been incurred and that are reasonably likely to be incurred by the Escrow Agent (with Buyer Party as a copy to Shareholder), concurrently with its delivery to the Escrow Agent result of the Notice, a certification matter referred to in such notice (the aggregate amount of such estimate being referred to as to the date on which the Notice was delivered to Shareholder“Claimed Amount”). (b) If Shareholder shall give a notice to During the Committee (with a copy to 30-day period commencing upon the Escrow Agent) (a “Counter Notice”), within 30 days following receipt by the date of receipt (as specified in the Committee’s certification) by Shareholder Sellers’ Representative of a copy Notice of the Notice, disputing whether the Indemnification Claim is indemnifiable under the Purchase AgreementClaim, the Committee Sellers’ Representative may deliver to Buyer and Shareholder shall attempt to resolve such dispute by voluntary settlement as provided in Section 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from Shareholder within a written response (the “Response Notice”) in which the Sellers’ Representative: (i) agrees that the full Claimed Amount is owed to the applicable Buyer Party; (ii) agrees that part (but not all) of the Claimed Amount (the “Agreed Amount”) is owed to the Buyer Party; or (iii) asserts that no part of the Claimed Amount is owed to Buyer Party. Any part of the Claimed Amount that is not agreed by the Seller Representative to be owed to the Buyer Party pursuant to the Response Notice (or the entire Claimed Amount, if the Sellers’ Representative asserts in the Response Notice that no part of the Claimed Amount is owed to Buyer) shall be referred to as the “Contested Amount.” If no Response Notice is delivered during such 30-day period, the Indemnification Claim shall be deemed to be an Established Claim (as hereinafter defined) then, for purposes of this Agreement, the Sellers’ Representative shall be deemed to have delivered to Buyer and the Escrow Agent a Response Notice on the last day of such 30-day period asserting that no part of the Claimed Amount is owed to Buyer. (c) If Shareholder the Sellers’ Representative delivers a Counter Response Notice to Buyer and Escrow Agent agreeing that the full Claimed Amount is owed to the applicable Buyer Party, then, within two business days following the receipt of such Response Notice by Escrow Agent, Buyer and the Committee and Shareholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given. If the Committee and Shareholder shall reach a settlement with respect to any such dispute, they Sellers’ Representative shall jointly execute and deliver written notice of such settlement to the Escrow Agent specifying a written notice instructing the terms thereof. If Escrow Agent to, and the Committee and Shareholder shall be unable Escrow Agent shall, release the full Claimed Amount (or such lesser amount of the Escrow Fund as may remain) to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to Section 2(d) belowthe applicable Buyer Party from the Escrow Fund. (d) If the Committee Sellers’ Representative delivers a Response Notice to Buyer agreeing that the Agreed Amount (if any) is owed to the applicable Buyer Party, then, within two business days following the receipt of such Response Notice by Escrow Agent, Buyer and Shareholder cannot resolve the Sellers’ Representative shall jointly execute and deliver to the Escrow Agent a dispute prior to expiration of written notice instructing the 60-day period referred to in Section 2(c) above Escrow Agent to, and the Escrow Agent shall, release the Agreed Amount (or such longer period lesser amount of the Escrow Fund as the parties may have agreed to in writing), then such dispute shall be submitted remain) (and either party may submit such disputeif any) to arbitration as set forth in Section 7 hereofthe applicable Buyer Party from the Escrow Fund. (e) As used If the Sellers’ Representative delivers a Response Notice to Buyer indicating that there is a Contested Amount, the Sellers’ Representative and Buyer shall attempt in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant good faith to resolve the dispute related to the last sentence Contested Amount. If Buyer and the Sellers’ Representative resolve such dispute in writing, then a settlement agreement stipulating the amount (if any) owed to Buyer (the “Stipulated Amount”) shall be signed by Buyer and the Sellers’ Representative. Within two business days after the execution of Section 2(b) abovesuch settlement agreement, (ii) Indemnification Claim resolved in favor of Purchaser by settlement pursuant to Section 2(c) above, resulting in a dollar award to Purchaser, (iii) Indemnification Claim established by Buyer and the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to Purchaser, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and Shareholder have jointly notified the Escrow Agent has been settled in accordance with the provisions of the Purchase Agreement. (i) Promptly after an Indemnification Claim becomes an Established Claim, the Committee and Shareholder Sellers’ Representative shall jointly execute and deliver a notice to the Escrow Agent (a “Joint Notice”) directing written notice instructing the Escrow Agent to pay to Purchaserto, and the Escrow Agent promptly shall pay to Purchasershall, an release the Stipulated Amount (or such lesser amount equal of the Escrow Fund as may remain) (if any) to the aggregate applicable Buyer Party from the Escrow Fund. (f) If the Sellers’ Representative and Buyer are unable to resolve the dispute relating to any Contested Amount during the 30-day period commencing upon the receipt of the Response Notice by Buyer, then either Buyer or the Sellers’ Representative may submit the contested portion of the indemnification claim to an arbitrator chosen by the American Arbitration Association, with the expenses of the American Arbitration Association to be shared equally by the Company and the Sellers’ Representative. The arbitrator shall address only the disputed items set forth in the Response Notice and may not assign a value greater than the greatest value claimed for any item by either party or smaller than the smallest value claimed for such item by either party. The arbitrator will (i) resolve the disputed items specified in the Response Notice and (ii) determine the dollar amount of the Established Claim (oraward to Buyer, if any (the “Award Amount”). The determination of the arbitrator will be made within 45 days after being selected and will be final and binding upon the parties. The Buyer, on the one hand, and the Sellers’ Representative, on the other hand, shall each pay the fees and expenses of such arbitrator in accordance with the proximity of their respective positions with respect to the Contested Amount, as compared to the arbitrator’s final determination at such time there remains in to the Escrow Fund less than Contested Amount (e.g., if Buyer proposes an amount of 1 and the full Sellers’ Representative proposes an amount so payableof 5 and the arbitrator determines a final amount of 4, Buyer would bear 75% of the full amount remaining in fees and expenses, and the Escrow FundSellers’ Representative would bear 25% of the fees and expenses). (ii) Payment . The final decision of an Established Claim the arbitrator shall be made from Escrow Shares pro rata from furnished to the account maintained on behalf Sellers’ Representative and Buyer in writing. Within two business days following the receipt of each Owner. For purposes the final award of each paymentthe arbitrator setting forth the Award Amount, such shares shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value shall release the Award Amount (or make a determination of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out lesser amount of the Escrow Fund that number of Purchaser Stock necessary as may remain), if any, to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve applicable Buyer Party from the Escrow Agent. Each transfer of shares in satisfaction of Fund. (g) Following the Survival Date, if an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata portion indemnification claim outstanding as of the aggregate number of shares specified in Survival Date is finally resolved, Buyer and the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner Sellers’ Representative shall jointly execute and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt of the share certificates and share transfer assignments, Purchaser shall deliver to the Escrow Agent new certificates representing Agent, within two business days after the number final resolution of shares owned by each Owner after such payment. The parties hereto (other than indemnification claim, a written notice instructing the Escrow AgentAgent to release from the Escrow Fund: (i) agree that the foregoing right to make payments of Established Claims in Purchaser Stock may be made notwithstanding any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means applicable Buyer Party the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior amount determined to be payable to Buyer Party pursuant to this Section 7A(vii) (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”if any), ; and (yii) to the Sellers’ Representative any remaining Escrow Termination Date with respect Fund not subject to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Dateoutstanding indemnification claims.

Indemnification Claims Procedure. (a) PurchaserBVICo, acting through the current or former member or members of PurchaserCOAC’s Board of Directors who has or have been appointed by Purchaser BVICo to take all necessary actions and make all decisions on behalf of Purchaser BVICo with respect to its rights to indemnification under Article VII of the Purchase Merger Agreement (the “Committee”), may make a claim for indemnification pursuant to the Purchase Merger Agreement (“Indemnification Claim”) against the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to the Shareholder (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Purchase Merger Agreement which it asserts has been breached or otherwise entitles Purchaser BVICo to indemnification and (ii) in reasonable detail, the nature and dollar amount of any Indemnification Claim. The Committee also shall deliver to the Escrow Agent (with a copy to the Shareholder), concurrently with its delivery to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to the Shareholder. (b) If the Shareholder shall give a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within 30 days following the date of receipt (as specified in the Committee’s certification) by the Shareholder of a copy of the Notice, disputing whether the Indemnification Claim is indemnifiable under the Purchase Merger Agreement, the Committee and the Shareholder shall attempt to resolve such dispute by voluntary settlement as provided in Section 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from the Shareholder within such 30-day period, the Indemnification Claim shall be deemed to be an Established Claim (as hereinafter defined) for purposes of this Agreement. (c) If the Shareholder delivers a Counter Notice to the Escrow Agent, the Committee and the Shareholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given. If the Committee and the Shareholder shall reach a settlement with respect to any such dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee and the Shareholder shall be unable to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to Section 2(d) below. (d) If the Committee and the Shareholder cannot resolve a dispute prior to expiration of the 60-day period referred to in Section 2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) to arbitration as set forth in Section 7 hereof. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Purchaser BVICo by settlement pursuant to Section 2(c) above, resulting in a dollar award to PurchaserBVICo, (iii) Indemnification Claim established by the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to PurchaserBVICo, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and the Shareholder have jointly notified the Escrow Agent has been settled in accordance with the provisions of the Purchase Merger Agreement. (f) (i) Promptly after an Indemnification Claim becomes an Established Claim, the Committee and the Shareholder shall jointly deliver a notice to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay to PurchaserBVICo, and the Escrow Agent promptly shall pay to PurchaserBVICo, an amount equal to the aggregate dollar amount of the Established Claim (or, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund). (ii) Payment of an Established Claim shall be made from Escrow Shares pro rata from the account maintained on behalf of each Owner. For purposes of each payment, such shares shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out of the Escrow Fund that number of Purchaser Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve the Escrow Agent. Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata portion of the aggregate number of shares specified in the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt of the share certificates and share transfer assignments, Purchaser shall deliver to the Escrow Agent new certificates representing the number of shares owned by each Owner after such payment. The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Purchaser Stock may be made notwithstanding any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior to (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Date.

Indemnification Claims Procedure. (a) PurchaserIf any Purchaser Indemnitee or Seller Indemnitee, acting through as the current or former members of Purchaser’s Board of Directors who have been appointed by Purchaser case may be, determines in good faith that such Party is entitled to take all necessary actions and make all decisions indemnification under this Article IX, then such Party (the “Indemnified Party”) may deliver to the Company (on behalf of Purchaser with respect to its rights to indemnification under Article VII of the Purchase Agreement Company and the Seller Subsidiaries) or Purchaser, as applicable (the “CommitteeIndemnifying Party”), may make a certificate signed by any officer of the Indemnified Party (a “Claim Certificate”): (i) stating that an Indemnified Party has a claim for indemnification pursuant to the Purchase Agreement (“Indemnification Claim”) against the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to Shareholder (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Purchase Agreement which it asserts has been breached or otherwise entitles Purchaser to indemnification and this Article IX; (ii) containing, to the extent possible, a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive, which shall be the amount of Damages such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and (iii) specifying in reasonable detaildetail (based upon the information then possessed by such Indemnified Party) the material facts known to such Indemnified Party giving rise to such claim. No delay in providing such Claim Certificate shall affect an Indemnified Party’s rights hereunder, unless, and then only to the extent that, the nature Indemnifying Party is actually and dollar amount of any Indemnification Claim. The Committee also shall deliver to the Escrow Agent (with a copy to Shareholder), concurrently with its delivery to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to Shareholdermaterially prejudiced. (b) If Shareholder the Indemnifying Party in good faith objects to any claim made in any Claim Certificate, then such party shall give deliver a written notice to the Committee (with a copy to the Escrow Agent) (a “Counter Claim Dispute Notice”) to the other parties during the thirty (30) calendar day period commencing upon receipt by the Indemnifying Party of the Claim Certificate (the “Dispute Notice Period”), within 30 days following . The Claim Dispute Notice shall set forth in reasonable detail the date principal basis for the dispute of receipt (as specified any claim made in the Committee’s certification) by Shareholder of a copy of the Notice, disputing whether the Indemnification relevant Claim is indemnifiable under the Purchase Agreement, the Committee and Shareholder shall attempt to resolve such dispute by voluntary settlement as provided in Section 2(c) belowCertificate. If no Counter Claim Dispute Notice with respect is delivered prior to an Indemnification the expiration of the Dispute Notice Period, then (i) each claim for indemnification set forth in such Claim is received by the Escrow Agent from Shareholder within such 30-day period, the Indemnification Claim Certificate shall be deemed to be an Established Claim (as hereinafter defined) have been conclusively determined in the relevant Indemnified Party’s favor for purposes of this AgreementArticle IX on the terms set forth in such Claim Certificate and (ii) within three (3) Business Days following the expiration of the Dispute Notice Period, the Indemnifying Party shall deliver to the Indemnified Party, by wire transfer of immediately available funds to such account as is designated by the Indemnified Party, an aggregate amount equal to the Damages set forth in such Claim Certificate. (c) If Shareholder delivers Following delivery of a Counter Notice to the Escrow AgentClaim Dispute Notice, the Committee Indemnified Party and Shareholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to Indemnifying Party shall then attempt in writing (with a copy to the Escrow Agent), attempt good faith to resolve the dispute with respect to which the Counter Notice was givenany such objections raised in such Claim Dispute Notice. If the Committee Indemnified Party and Shareholder shall reach the Indemnifying Party agree to a settlement with respect to any such dispute, they shall jointly deliver written notice resolution of such settlement objection, then (i) a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party (including the amount of indemnifiable Damages, if any) shall be prepared and signed by both parties and (ii) within three Business Days following the execution by both parties of such memorandum, the Indemnifying Party shall deliver to the Escrow Agent specifying Indemnified Party, by wire transfer of immediately available funds to such account as is designated by the terms thereof. If Indemnified Party, an aggregate amount equal to the Committee and Shareholder shall be unable to reach a settlement with respect to a disputeDamages, if any, set forth in such dispute shall be resolved by arbitration pursuant to Section 2(d) belowmemorandum. (d) If no such resolution can be reached during the Committee and Shareholder cannot resolve thirty (30) calendar day period following receipt of a dispute prior to given Claim Dispute Notice, then upon the expiration of such thirty (30) calendar day period, either the 60-day period referred Indemnified Party or the Indemnifying Party may bring suit to in Section 2(c) above (or resolve such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) to arbitration as set forth in Section 7 hereof. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Purchaser by settlement pursuant to Section 2(c) above, resulting in a dollar award to Purchaser, (iii) Indemnification Claim established by the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to Purchaser, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and Shareholder have jointly notified the Escrow Agent has been settled claim in accordance with the provisions Sections 10.13 and 10.14. The decision of the Purchase Agreement. trial court as to the validity and amount of any claim in such Claim Certificate shall be non-appealable, binding and conclusive upon the Indemnified Party and the Indemnifying Party. If such decision calls for a payment of Damages to an Indemnified Party, within three (i3) Promptly after an Indemnification Claim becomes an Established ClaimBusiness Days following the date of such decision, the Committee and Shareholder shall jointly deliver a notice to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay to Purchaser, and the Escrow Agent promptly shall pay to Purchaser, an amount equal to the aggregate dollar amount of the Established Claim (or, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund). (ii) Payment of an Established Claim shall be made from Escrow Shares pro rata from the account maintained on behalf of each Owner. For purposes of each payment, such shares shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out of the Escrow Fund that number of Purchaser Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve the Escrow Agent. Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata portion of the aggregate number of shares specified in the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt of the share certificates and share transfer assignments, Purchaser Indemnifying Party shall deliver to the Escrow Agent new certificates representing Indemnified Party, by wire transfer of immediately available funds to such account as is designated by the number of shares owned Indemnified Party, an aggregate amount equal to such Damages. Judgment upon any award rendered by each Owner after such payment. The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Purchaser Stock trial court may be made notwithstanding entered in any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior to (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Datecourt having jurisdiction.

Indemnification Claims Procedure. (a) PurchaserCAH, acting through the current or former member or members of PurchaserCAH’s Board of Directors who has or have been appointed by Purchaser CAH to take all necessary actions and make all decisions on behalf of Purchaser CAH with respect to its rights to indemnification under Article VII of the Purchase Merger Agreement (the “Committee”), may make a claim for indemnification pursuant to the Purchase Merger Agreement (“Indemnification Claim”) against the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to Shareholder Stockholder (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Purchase Merger Agreement which it asserts has been breached or otherwise entitles Purchaser CAH to indemnification and (ii) in reasonable detail, the nature and dollar amount of any Indemnification Claim. The Committee also shall deliver to the Escrow Agent (with a copy to ShareholderStockholder), concurrently with its delivery to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to ShareholderStockholder. (b) If Shareholder Stockholder shall give a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within 30 days following the date of receipt (as specified in the Committee’s certification) by Shareholder Stockholder of a copy of the Notice, disputing whether the Indemnification Claim is indemnifiable under the Purchase Merger Agreement, the Committee and Shareholder Stockholder shall attempt to resolve such dispute by voluntary settlement as provided in Section 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from Shareholder Stockholder within such 30-day period, the Indemnification Claim shall be deemed to be an Established Claim (as hereinafter defined) for purposes of this Agreement. (c) If Shareholder Stockholder delivers a Counter Notice to the Escrow Agent, the Committee and Shareholder Stockholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given. If the Committee and Shareholder Stockholder shall reach a settlement with respect to any such dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee and Shareholder Stockholder shall be unable to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to Section 2(d) below. (d) If the Committee and Shareholder Stockholder cannot resolve a dispute prior to expiration of the 60-day period referred to in Section 2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) to arbitration as set forth in Section 7 hereof. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Purchaser CAH by settlement pursuant to Section 2(c) above, resulting in a dollar award to PurchaserCAH, (iii) Indemnification Claim established by the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to PurchaserCAH, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and Shareholder Stockholder have jointly notified the Escrow Agent has been settled in accordance with the provisions of the Purchase Merger Agreement. (i) Promptly after an Indemnification Claim becomes an Established Claim, the Committee and Shareholder shall jointly deliver a notice to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay to Purchaser, and the Escrow Agent promptly shall pay to Purchaser, an amount equal to the aggregate dollar amount of the Established Claim (or, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund). (ii) Payment of an Established Claim shall be made from Escrow Shares pro rata from the account maintained on behalf of each Owner. For purposes of each payment, such shares shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out of the Escrow Fund that number of Purchaser Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve the Escrow Agent. Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata portion of the aggregate number of shares specified in the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt of the share certificates and share transfer assignments, Purchaser shall deliver to the Escrow Agent new certificates representing the number of shares owned by each Owner after such payment. The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Purchaser Stock may be made notwithstanding any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior to (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Date.

Indemnification Claims Procedure. (a) Purchaser, acting through the current or former members of Purchaser’s Board of Directors who have been appointed by Purchaser to take all necessary actions and make all decisions on behalf of Purchaser with respect to its rights If an Indemnified Party -------------------------------- believes that it is entitled to indemnification under Article VII hereunder in an amount in excess of the Purchase Agreement Indemnification Threshold, the Indemnified Party shall give notice thereof (an "Indemnification Notice") to each Indemnifying Party specifying, in reasonable detail the “Committee”), may make a basis for its claim for indemnification pursuant to the Purchase Agreement indemnification. Within fifteen (“15) days after receiving an Indemnification Claim”) against the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to Shareholder (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Purchase Agreement which it asserts has been breached or otherwise entitles Purchaser to indemnification and (ii) in reasonable detail, the nature and dollar amount of any Indemnification Claim. The Committee also an Indemnifying Party shall deliver to the Escrow Agent Indemnified Party a statement (with a copy to Shareholderan "Indemnification Response"), concurrently with its delivery specifying any objections and setting forth in reasonable detail each amount objected to, which such Indemnifying Party has to the Escrow Agent claim of the Notice, a certification as to the date on which the Notice was delivered to Shareholder. (b) If Shareholder shall give a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”), within 30 days following the date of receipt (as specified Indemnified Party set forth in the Committee’s certification) by Shareholder of a copy of the Indemnification Notice, disputing whether the . If any Indemnifying Party does not deliver an Indemnification Claim is indemnifiable under the Purchase Agreement, the Committee and Shareholder shall attempt to resolve such dispute by voluntary settlement Response as provided in Section 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received by the Escrow Agent from Shareholder within above, such 30-day period, the Indemnification Claim Indemnifying Party shall be deemed to be have accepted its obligation to indemnify as set forth in the Indemnification Notice. If an Established Claim (Indemnifying Party delivers an Indemnification Response as hereinafter defined) for purposes of this Agreement. (c) If Shareholder delivers a Counter Notice to provided above, such Indemnifying Party and the Escrow Agent, the Committee and Shareholder shall, during the period of 60 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to in writing (with a copy to the Escrow Agent), attempt Indemnified Party shall use reasonable efforts to resolve the dispute with respect to which the Counter Notice was given. If the Committee and Shareholder shall dispute, but if they do not reach a settlement with respect final resolution within twenty (20) days after the date of delivery of the Indemnification Response as to any such all amounts or obligations in dispute, they shall jointly deliver written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee any remaining amounts and Shareholder shall be unable to reach a settlement with respect to a dispute, such obligations in dispute shall be resolved by arbitration pursuant to Section 2(d) below. (d) If the Committee and Shareholder cannot resolve a dispute prior to expiration of the 60-day period referred to in Section 2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either party may submit such dispute) to arbitration as set forth in Section 7 hereof. (e) As used in this Agreement, “Established Claim” means any (i) Indemnification Claim deemed established pursuant to the last sentence of Section 2(b) above, (ii) Indemnification Claim resolved in favor of Purchaser by settlement pursuant to Section 2(c) above, resulting in a dollar award to Purchaser, (iii) Indemnification Claim established by the decision of an arbitrator pursuant to Section 2(d) above, resulting in a dollar award to Purchaser, (iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the Committee and Shareholder have jointly notified the Escrow Agent has been settled in accordance with the provisions rules then in effect of the Purchase Agreement. (i) Promptly after an Indemnification Claim becomes an Established ClaimAmerican Arbitration Association by three arbitrators, appointed pursuant to such rules. The arbitration shall be held in Boston, Massachusetts and shall involve a reasonable amount of discovery according to limits to be established by the Committee arbitrators. The determination of such arbitrators shall be final and Shareholder binding upon the parties. All fees and expenses of the arbitrators and of the American Arbitration Association shall jointly deliver a notice be divided between the Indemnifying Party and the Indemnified Party in proportion to the Escrow Agent (a “Joint Notice”) directing decision of the Escrow Agent arbitrators with respect to pay to Purchaserthe amount in dispute. For example, if the amount in dispute under the Indemnification Response involves an assertion by the Indemnifying Party that the claim by the Indemnified Party is $100,000 too high, and the Escrow Agent promptly shall pay to Purchaser, an amount equal to arbitrators determine that the aggregate dollar amount appropriate adjustment is a $25,000 decrease in the claim of the Established Claim (orIndemnified Party, if at such time there remains in then the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund). (ii) Payment of an Established Claim Indemnifying Party shall be made from Escrow Shares pro rata from responsible for paying 75% of such fees and expenses and the account maintained on behalf of each Owner. For purposes of each payment, such shares Indemnified Party shall be valued at the “Fair Market Value” (as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination responsible for paying 25% of the number of shares to be delivered to Purchaser in satisfaction of any Established Claim; rather, such calculation shall be included in fees and made part of the Joint Notice. The Escrow Agent shall transfer to Purchaser out of the Escrow Fund that number of Purchaser Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute between the Committee and Shareholder concerning the calculation of Fair Market Value or the number of shares necessary to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and Shareholder in accordance with the procedures specified in Section 2(d) above, and shall not involve the Escrow Agent. Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Purchaser one or more share certificates held in each Owner’s account evidencing not less than such Owner’s pro rata portion of the aggregate number of shares specified in the Joint Notice, together with share transfer instruments separate from certificate executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included in the Joint Notice. Upon receipt of the share certificates and share transfer assignments, Purchaser shall deliver to the Escrow Agent new certificates representing the number of shares owned by each Owner after such payment. The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Purchaser Stock may be made notwithstanding any other agreements restricting or limiting the ability of any Owner to sell any shares of Purchaser Stock or otherwise. The Committee and Shareholder shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As used herein, “Fair Market Value” means the average reported last sale price for the Purchaser Stock for the ten trading days ending on the last trading day prior to (x) the day the Established Claim is paid with respect to Indemnification Claims paid on or before the thirtieth day after Purchaser files its Annual Report on Form 20-F for the fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination Dateexpenses.