Common use of Indemnification Escrow Fund Clause in Contracts

Indemnification Escrow Fund. The Indemnification Escrow Amount (plus any interest or other income paid on such Indemnification Escrow Amount in accordance with the Escrow Agreement) (the “Indemnification Escrow Fund”) shall be available to compensate the Indemnified Parties for any Indemnifiable Losses suffered or incurred by them and for which they are entitled to recovery under Article VIII. The terms of, and timing and payment under, the Indemnification Escrow Fund shall be in accordance with Article VIII and the Escrow Agreement. Subject to the terms of this Agreement and the Escrow Agreement, the Released Indemnification Escrow Amount payable to the Stockholders shall be allocated among, and distributed to, the Stockholders such that with respect to any distribution of the Released Indemnification Escrow Amount pursuant to Section 2.4 of the Escrow Agreement (each an “Indemnification Escrow Distribution”) in the following priority: (i) first, each share of Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above).

Indemnification Escrow Fund. The Subject to the terms and conditions hereof, on the Closing Date, Parent shall deposit in escrow a portion of the Total Transaction Consideration equal to Fifteen Million ($15,000,000) (the “Indemnification Escrow Amount Amount”), in readily available funds (plus the Indemnification Escrow Amount, together with the interest accrued and any interest or other income paid on such Indemnification Escrow Amount in accordance with the Escrow Agreement) (earned thereon, the “Indemnification Escrow Fund”) with the Escrow Agent, pursuant to the Escrow Agreement. The Indemnification Escrow Fund shall be available held and disbursed as provided in the Escrow Agreement, which shall provide, among other things, that (i) any fees or expenses payable to compensate the Indemnified Parties for any Indemnifiable Losses suffered or incurred by them and for which they are entitled to recovery Escrow Agent under Article VIII. The terms the Escrow Agreement on account of, in connection with or related to the Indemnification Escrow Fund (the “Escrow Costs”) shall first be paid out of any income and timing and payment under, interest accrued on the Indemnification Escrow Amount in the Indemnification Escrow Fund; (ii) the Indemnification Escrow Fund shall be disbursed (A) to Parent to satisfy any Holdback Shortfall pursuant to Section 2.2(c)(iii)(1) and (B) to the Parent Indemnitees to satisfy any indemnification obligation of the Stockholders under Section 7.2, in the case of this clause (B) only, when the conditions for indemnification set forth in Section 7.2 have been satisfied; provided, however, that to the extent that the balance of the Indemnification Escrow Fund is not sufficient to satisfy any indemnification obligations of the Stockholders to the Parent Indemnitees under Section 7.2 when the conditions for indemnification set forth in Section 7.2 have been satisfied, then such shortfall shall be satisfied from any balance remaining in the PMR/RWB Escrow Funds pursuant to, and in accordance with the terms and subject to the conditions of, the PMR/RWB Escrow Agreement; (iii) any income or interest on the Indemnification Escrow Amount (net of any Escrow Costs) shall be distributed to the Stockholders as provided in the Escrow Agreement (such net amount, the “Indemnification Escrow Net Earnings”); and (iv) as of the one year anniversary of the Closing Date, any amount of cash remaining in the Indemnification Escrow Fund (other than any amount of cash required to satisfy the maximum amount of the aggregate of any claims for indemnification for which written notice has been given to the Indemnifying Party in accordance with Article VIII VII and which as of such one-year anniversary have not been finally determined), including any income or interest accrued thereon but less any Escrow Costs and less any amounts then due and payable from the Escrow Agreement. Subject to the terms of this Agreement and the Escrow Agreement, the Released Indemnification Escrow Amount payable to the Stockholders shall be allocated among, and distributed to, the Stockholders such that with respect Fund to any distribution of the Released Indemnification Escrow Amount Parent Indemnitee pursuant to Section 2.4 of 7.2, shall be distributed by the Escrow Agent to the Paying Agent in accordance with the Escrow Agreement (each an any such remaining amounts, the “Indemnification Escrow DistributionFinal Balance”) in and, together with the following priority: (i) first, each share of Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up toNet Earnings, in the aggregate, an amount equal to the difference, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up“Indemnification Escrow Surplus”). The parties acknowledge and agree that any Parent shall be treated as the owner of the Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after Fund for all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above)tax purposes.

Indemnification Escrow Fund. The (a) Within five Business Days following the date that is 18 months after the Closing Date (the “General Escrow Release Date”), Parent and the Stockholders’ Representative shall jointly instruct the Escrow Agent to release to the Paying Agent and the Surviving Corporation, as applicable, from the Indemnification Escrow Amount Fund (plus any interest or other income paid on such pursuant to the Escrow Agreement) in an amount equal to: (i) the Indemnification Escrow Fund remaining as of the General Escrow Release Date, minus (ii) any amounts asserted in good faith by Parent in any Claim Notice with respect to a claim subject to the Indemnification Escrow Fund delivered to the Stockholders’ Representative at or prior to 11:59 p.m. (New York time), on the General Escrow Release Date, but not resolved, at or prior to such time (each such claim a “Continuing General Claim” and, such amount, the “Retained General Indemnity Amount”) for further distribution by (x) the Paying Agent to the Stockholders (other than the holders of vested Company Options) that delivered a properly executed Letter of Transmittal in accordance with such Stockholder’s Pro Rata Portion and (y) the Surviving Corporation to each holder of vested Company Options in accordance with such Stockholder’s Pro Rata Portion, such amount to be paid by the Surviving Corporation to each such Stockholder through its standard payroll procedures, less any applicable withholding, no later than the later of (A) the date that is five (5) Business Days following the date that the Surviving Corporation receives such amount from the Escrow Agent or (B) the next-scheduled payroll date following the date that the Surviving Corporation receives such amount from the Escrow Agent. Notwithstanding the foregoing, within five (5) Business Days following the date that is twelve (12) months after the Closing Date, to the extent the Indemnification Escrow Fund contains more than $[***], Parent and the Stockholders’ Representative shall jointly instruct the Escrow Agent to release to the Paying Agent and the Surviving Corporation, as applicable, from the Indemnification Escrow Fund (pursuant to the Escrow Agreement) an amount, if any, by which the Indemnification Escrow Fund exceeds of the sum of (I) $[***] plus (II) any Retained General Indemnity Amount subject to a Continuing General Claim. The Escrow Agent shall continue to hold the Retained General Indemnity Amount in accordance with Section 9.8(c) and the Escrow Agreement. (b) Within five Business Days following the respective release dates identified on Schedule 9.1(a)(viii) (each, a “Special Indemnification Escrow Release Date”), Parent and the Stockholders’ Representative shall jointly instruct the Escrow Agent to release to the Paying Agent and the Surviving Corporation, as applicable, from the Special Indemnification Escrow Fund (pursuant to the Escrow Agreement) an amount set forth under the heading “Schedule of Release” on Schedule 9.1(a)(viii) minus any amounts asserted in good faith by Parent in any Claim Notice with respect to a claim subject to the Special Indemnification Escrow Fund delivered to the Stockholders’ Representative at or prior to 11:59 p.m. (New York time), on the Special Indemnification Escrow Release Date, but not resolved, at or prior to such time (each such claim a “Continuing Special Claim” and, such amount, the “Retained Special Indemnity Amount”) for further distribution by (x) the Paying Agent to the Stockholders (other than the holders of vested Company Options) that delivered a properly executed Letter of Transmittal in accordance with such Stockholder’s Pro Rata Portion and (y) the Surviving Corporation to each holder of vested Company Options in accordance with such Stockholder’s Pro Rata Portion, such amount to be paid by the Surviving Corporation to each such Stockholder through its standard payroll procedures, less any applicable withholding, no later than the later of (A) the date that is five (5) Business Days following the date that the Surviving Corporation receives such amount from the Escrow Agent or (B) the next-scheduled payroll date following the date that the Surviving Corporation receives such amount from the Escrow Agent. The Escrow Agent shall continue to hold the Retained Special Indemnity Amount in accordance with Section 9.8(c) and the Escrow Agreement. (c) Following the Escrow Release Date or Special Indemnification Escrow FundRelease Date (as applicable, the “Escrow Release Date”), within one (1) shall be available to compensate the Indemnified Parties for any Indemnifiable Losses suffered or incurred by them and for which they are entitled to recovery under Article VIII. The terms of, and timing Business Day after resolution and payment underof a Continuing Special Claim, or to the extent that Parent determines in good faith that any portion of the Retained Special Indemnity Amount is no longer reasonably necessary to satisfy all indemnification obligations referred to in Section 9.7(c), Parent and the Stockholders’ Representative shall jointly instruct the Escrow Agent to release to the Paying Agent and the Surviving Corporation, as applicable, from the Indemnification Escrow Fund shall be in accordance with Article VIII and or Special Indemnification Escrow Fund, as applicable, (pursuant to the Escrow Agreement. Subject ) in an amount equal to (i) the Retained Special Indemnity Amount as of the date of such resolution and payment or the date of such determination, as the case may be (as reduced from time to time pursuant to the terms of this Agreement), minus (ii) the Retained Special Indemnity Amount related to any unresolved Continuing Special Claims (which amounts will continue to be held as the Retained Special Indemnity Amount pursuant to the Escrow Agreement and this Section 9.8(c)) for further distribution by (i) the Paying Agent to the Stockholders (other than the holders of vested Company Options) that delivered a properly executed Letter of Transmittal in accordance with such Stockholder’s Common Stock Pro Rata Portion and (ii) the Surviving Corporation to each Stockholder that holds vested Company Options in accordance with such Stockholder’s Option Pro Rata Portion, such amount to be paid by the Surviving Corporation to each such Stockholder through its standard payroll procedures, less any applicable withholding, later than the later of (x) the date that is five (5) Business Days following the date that the Surviving Corporation receives such amount from the Escrow Agent or (y) the next-scheduled payroll date following the date that the Surviving Corporation receives such amount from the Escrow Agent. Upon final resolution of all Continuing Special Claims, Parent and the Stockholders’ Representative shall jointly instruct the Escrow Agent to release any remaining portion of the Retained Special Indemnity Amount in accordance with this Section 9.8(c) and the Escrow Agreement, the Released Indemnification Escrow Amount payable to the Stockholders shall be allocated among, and distributed to, the Stockholders such that with respect to any distribution of the Released Indemnification Escrow Amount pursuant to Section 2.4 of the Escrow Agreement (each an “Indemnification Escrow Distribution”) in the following priority: (i) first, each share of Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above).

Indemnification Escrow Fund. The (1) From and after the date of this Agreement until the nine-month anniversary of the date hereof (the “Initial Release Date”), Buyer may make claims against the Indemnification Escrow Fund as set forth in this Section 3(c). Buyer shall, simultaneously with delivery of a Claim Notice to the Escrow Participants pursuant to Section 7.2 of the Purchase Agreement, provide such Claim Notice to the Escrow Agent indicating that it is entitled to all or any portion of the Indemnification Escrow Fund pursuant to the terms of Section 7.2 of the Purchase Agreement. The Claim Notice shall set forth the Claim Amount (plus as defined in the Purchase Agreement). Unless the Escrow Participants provide a written response to Escrow Agent, which written response is received by Escrow Agent within fifteen (15) days after Escrow Agent’s receipt of the Claim Notice, in which the Escrow Participants object to all or any portion of the Claim Amount, Escrow Agent shall pay to Buyer, within two (2) business days after the end of such fifteen (15) day period (or, if the Escrow Participants affirmatively notify the Escrow Agent that they have no objection to the Claim Amount, within two (2) business days after the date on which the Escrow Agent receives such notice), that portion of the Indemnification Escrow Fund which is equal to the Claim Amount, together with any interest or other income paid on thereon through the date of disbursement. If within such Indemnification Escrow Amount in accordance with fifteen (15) day period, the Escrow Agreement) (Agent receives from the “Indemnification Escrow Fund”) shall be available Participants written notice that they object to compensate the Indemnified Parties for any Indemnifiable Losses suffered or incurred by them and for which they are entitled to recovery under Article VIII. The terms of, and timing and payment underportion of Buyer’s claim, the Indemnification Escrow Fund Participants’ written response shall be in accordance with Article VIII and specify the Escrow Agreement. Subject to the terms of this Agreement and the Escrow Agreement, the Released Indemnification Escrow Amount payable to the Stockholders shall be allocated among, and distributed to, the Stockholders such that with respect to any distribution of the Released Indemnification Escrow Amount pursuant to Section 2.4 of the Escrow Agreement (each an “Indemnification Escrow Distribution”) in the following priority: (i) first, each share of Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation Amountreason(s), in cashreasonable detail, without interest for the objection and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfallportion, if any, of the full Series A Liquidation Preference Payment Claim Amount which is accepted. If any portion of the Claim Amount is expressly accepted by the Escrow Participants, Escrow Agent shall pay to Buyer, within two (as such term 2) business days after Escrow Agent’s receipt of the Escrow Participant’s written response, that portion of the Indemnification Escrow Fund which is defined equal to the portion of the Claim Amount expressly accepted by the Escrow Participants, together with any interest or other income thereon through the date of disbursement. The portion of any Claim Amount objected to by the Escrow Participants in accordance with the Company’s Second Amended and Restated Certificate terms of Incorporation this Agreement (the “Restated CharterDisputed Amount”) shall be retained in the Indemnification Escrow Fund and distributed by Escrow Agent only in accordance with the terms of Section 3(a) above. The Escrow Participants shall simultaneously deliver to Buyer a copy of any written response to a Claim Notice that it provides to the Escrow Agent under this Section 3(c)(i)) required , and the Escrow Agent shall have no responsibility to determine if a copy of such written response was delivered to or received by Buyer. The Escrow Agent may rely conclusively on any Claim Notice or response thereto or letter of instruction it receives hereunder and it will be paid by Section 4(a)(i) of Article Fourth presumed that any such notice satisfies the conditions set forth herein. Furthermore, the Escrow Agent shall not have responsibility to determine if a Claim Notice or a response thereto satisfies the conditions set forth in the Purchase Agreement for making a claim, including whether there is a basis for making a claim, whether the claim is set forth in sufficient detail, or that a copy of the Restated Charter;Claim Notice was sent to or received by the Escrow Participants. (2) Not later than the third (3rd) business day following the Initial Release Date, Escrow Agent shall distribute to the Escrow Participants pro rata in accordance with their respective Percentage Interests (i) the remaining balance of the Indemnification Escrow Fund, if any, less (ii) secondan amount sufficient to cover all outstanding and unpaid Claim Amounts that are subject to Claim Notices made on or prior to the Initial Release Date (whether disputed or undisputed and including any Disputed Amounts) (the “Outstanding Claims”) in accordance with this Agreement, each share of Company Series 1 Preferred Stock and less (iii) any interest or other than shares income on the Claim Amounts for such Outstanding Claims. If the amount to be canceled distributed to the Escrow Participants pursuant to this Section 3(c)(ii) is reduced as a result of any Outstanding Claims, then all related Claim Amounts and interest or other income thereon that remains in the Indemnification Escrow shall be disbursed by Escrow Agent after the Initial Release Date in accordance with Section 2.1(b3(a) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after all payments, if any, made pursuant to Section 2.2(a)(i3(b)(i) above) to , together with any interest or other income thereon through the holders date of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above)disbursement.

Indemnification Escrow Fund. The Indemnification Escrow Amount (plus a) WSI shall indemnify, defend and hold Buyer and Buyer's affiliates, directors, officers, employees and representatives, jointly and severally (collectively, "Buyer Indemnified Parties"), harmless from and against any interest and all claims, demands, losses, obligations, liabilities (including reasonable attorneys' fees and costs), except consequential or other income paid on such Indemnification Escrow Amount indirect damages in accordance with the Escrow Agreementexcess of $1,000,000, arising from (i) (the “Indemnification Escrow Fund”) shall be available to compensate the Indemnified Parties any claim for any Indemnifiable Losses suffered debt, obligation or incurred liability which is not specifically and expressly assumed by them the Buyer pursuant to this Agreement arising from the WSI Assets prior to the Closing Date, (ii) any misrepresentation, breach or violation of any covenant, agreement, representation or warranty of WSI contained in this Agreement and/or any other of the Transaction Documents, or from any misrepresentation in or omission from any certificate or instrument furnished or to be furnished by WSI hereunder; and for (iii) any suit, action, proceeding, claim or investigation, pending or threatened, against or affecting the WSI Assets, that arose in any manner prior to the Closing Date, all of the above herein collectively referred to as the "WSI Obligations." Notwithstanding the foregoing limitation on WSI Obligations to those that arise in any manner prior to the Closing Date, in the event that WSI has not transferred possession of any WSI Asset to the Buyer as of the Closing Date or in the event that Xxxxxxxx Xxxxxx or Xxxxxx Xxxxxxxxx have acted on behalf of WSI subsequent to the Closing Date, the WSI Obligations shall include the period from the Closing Date until the date upon which they are entitled the Buyer possesses such WSI Asset or such activities on behalf of WSI cease, subject to recovery under all other terms and conditions as set forth in this Article VIIIVI. The terms of, and timing and payment under, the Indemnification Escrow Fund shall be utilized to fund indemnification payments to Buyer pursuant to this Article as set forth in accordance with Article VIII and the Escrow Agreement. Subject to the terms Section 6.05 of this Agreement Agreement. (b) ATH shall indemnify, defend and the Escrow Agreementhold Buyer Indemnified Parties harmless from and against any and all claims, the Released Indemnification Escrow Amount payable to the Stockholders shall be allocated amongdemands, losses, obligations, liabilities (including reasonable attorneys' fees and distributed tocosts), the Stockholders such that with respect to any distribution except consequential or indirect damages in excess of the Released Indemnification Escrow Amount pursuant to Section 2.4 of the Escrow Agreement (each an “Indemnification Escrow Distribution”) in the following priority: $1,000,000, arising from (i) firstany claim for any debt, each share obligation or liability which is not specifically and expressly assumed by the Buyer pursuant to this Agreement regarding any of Company Series A Preferred Stock (other than shares to be canceled the Assets arising in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately any manner prior to the Effective Time shall represent Closing Date, including, but not limited to, any liability arising from or in connection with purported amendments to that certain distribution agreement, dated April 22, 1999, between ATH and Enterprise Asset Management Solutions Ltd. (the right to receive in respect of such share a pro rata share "EAMS Distribution Agreement"); (ii) any misrepresentation, breach or violation of any Indemnification Escrow Distributions up covenant, agreement, representation or warranty of either of Sellers contained in this Agreement and/or any other of the Transaction Documents, or from any misrepresentation in or omission from any certificate or instrument furnished or to be furnished by either of Sellers hereunder; and (iii) any suit, action, proceeding, claim or investigation, pending or threatened, against or affecting the Assets, including, but not limited to, any such action related to the EAMS Distribution Agreement, regardless of whether such is disclosed in a disclosure schedule hereto, that arose in any manner prior to the Closing Date, all of the above herein collectively referred to as the "ATH's Obligations." Notwithstanding the foregoing limitation on ATH's Obligations to those that arise in any manner prior to the Closing Date, in the aggregate, an amount equal event that Sellers have not transferred possession of any Asset to the difference, if any, between Buyer as of the Series A Liquidation Amount and Closing Date or in the Series A Liquidation Amount (without taking into account the proviso event that Xxxxxxxx Xxxxxx or Xxxxxx Xxxxxxxxx have acted on behalf of WSI subsequent to the definition Closing Date, ATH's Obligations shall include the period from the Closing Date until the date upon which the Buyer possesses any such Asset or such activities on behalf of Series A Liquidation Amount)WSI cease, subject to all other terms and conditions as set forth in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up)this Article VI. The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will Fund shall be paid first utilized to the holders of the Company Series A Preferred Stock in order fund indemnification payments to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid Buyer pursuant to this Article as set forth in Section 2.2(a)(iii6.05 of this Agreement. (c) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) 6.02 of the Purchase Agreement is hereby deleted in its entirety and Section 2.2(a)(ii) above).replaced with the following:

Indemnification Escrow Fund. (a) Subject Section 8.3(a), in addition to any other available remedies, Parent and the Surviving Corporation shall be entitled to recover from the Indemnification Escrow Fund the amount of any indemnification to which it is entitled under this Agreement. (b) At the Closing, fifteen percent (15%) of the shares of Parent Common Stock issued hereunder (or, with respect to the SAU Shares, immediately prior to the effectiveness of the Registration Statement 15% of the shares issued in redemption of the Stock Appreciation Units which do not constitute SAU Escrow Shares) (collectively, the "Indemnification Escrow Shares"), shall be registered in the name of, and be deposited with, Continental Stock Transfer and Trust Company (or other institution selected by Parent with the reasonable consent of LPC) as escrow agent (the "Indemnification Escrow Agent"), such deposit to constitute the Indemnification Escrow Fund and to be governed by the terms set forth herein and in the Indemnification Escrow Agreement attached hereto as Exhibit E. The Indemnification Escrow Amount (plus any interest or other income paid on such Indemnification Escrow Amount in accordance with the Escrow Agreement) (the “Indemnification Escrow Fund”) Fund shall be available to compensate Parent pursuant to the Indemnified Parties indemnification obligations of the LPC Holders, but shall not be the exclusive source of such compensation, subject to the third sentence of Section 8.3. In the event Parent issues any Additional Indemnification Escrow Shares (as defined in Section 8.4(c)), such shares will be issued in the name of the Indemnification Escrow Agent and delivered to the Indemnification Escrow Agent in the same manner as the Indemnification Escrow Shares delivered at the Closing. (c) Except for dividends paid in stock declared with respect to the Indemnification Escrow Shares ("Additional Indemnification Escrow Shares"), which shall be treated pursuant to Section 8.4(b) hereof, any Indemnifiable Losses suffered cash dividends, dividends payable in securities or incurred by them and for which they are entitled other distributions of any kind made in respect of the Indemnification Escrow Shares will be delivered to recovery under Article VIIIthe LPC Holders on a pro rata basis based on their respective escrow contribution. The terms of, and timing and payment under, Each LPC Holder will have voting rights with respect to the Indemnification Escrow Shares deposited in the Indemnification Escrow Fund shall be with respect to such person so long as such Indemnification Escrow Shares are held in accordance with Article VIII escrow, and Parent will take all reasonable steps necessary to allow the exercise of such rights. While the Indemnification Escrow Agreement. Subject Shares remain in the Indemnification Escrow Agent's possession pursuant to the terms of this Agreement and the Escrow Agreement, the Released LPC Holders will retain and will be able to exercise all other incidents of ownership of said Indemnification Escrow Amount payable to Shares which are not inconsistent with the Stockholders shall be allocated among, terms and distributed to, the Stockholders such that with respect to any distribution conditions of the Released Indemnification Escrow Amount pursuant to Section 2.4 of the Escrow Agreement (each an “Indemnification Escrow Distribution”) in the following priority: (i) first, each share of Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above)Agreement.

Indemnification Escrow Fund. Subject to the terms and conditions hereof, on the Closing Date, Parent shall deposit in escrow a portion of the Total Transaction Consideration equal to Fifteen Million ($15,000,000) (the "INDEMNIFICATION ESCROW AMOUNT"), in readily available funds (the Indemnification Escrow Amount, together with the interest accrued and any other income earned thereon, the "INDEMNIFICATION ESCROW FUND") with the Escrow Agent, pursuant to the Escrow Agreement. The Indemnification Escrow Amount Fund shall be held and disbursed as provided in the Escrow Agreement, which shall provide, among other things, that (plus i) any fees or expenses payable to the Escrow Agent under the Escrow Agreement on account of, in connection with or related to the Indemnification Escrow Fund (the "ESCROW COSTS") shall first be paid out of any income and interest or other income paid accrued on such the Indemnification Escrow Amount in accordance with the Escrow Agreement) (the “Indemnification Escrow Fund”; (ii) shall be available to compensate the Indemnified Parties for any Indemnifiable Losses suffered or incurred by them and for which they are entitled to recovery under Article VIII. The terms of, and timing and payment under, the Indemnification Escrow Fund shall be disbursed (A) to Parent to satisfy any Holdback Shortfall pursuant to SECTION 2.2(C)(III)(1) and (B) to the Parent Indemnitees to satisfy any indemnification obligation of the Stockholders under SECTION 7.2, in the case of this clause (B) only, when the conditions for indemnification set forth in SECTION 7.2 have been satisfied; PROVIDED, HOWEVER, that to the extent that the balance of the Indemnification Escrow Fund is not sufficient to satisfy any indemnification obligations of the Stockholders to the Parent Indemnitees under SECTION 7.2 when the conditions for indemnification set forth in SECTION 7.2 have been satisfied, then such shortfall shall be satisfied from any balance remaining in the PMR/RWB Escrow Funds pursuant to, and in accordance with Article VIII the terms and subject to the conditions of, the PMR/RWB Escrow Agreement. Subject to ; (iii) any income or interest on the terms of this Agreement and the Escrow Agreement, the Released Indemnification Escrow Amount payable (net of any Escrow Costs) shall be distributed to the Stockholders shall be allocated among, and distributed to, the Stockholders such that with respect to any distribution of the Released Indemnification Escrow Amount pursuant to Section 2.4 of as provided in the Escrow Agreement (each an “such net amount, the "INDEMNIFICATION ESCROW NET EARNINGS"); and (iv) as of the one year anniversary of the Closing Date, any amount of cash remaining in the Indemnification Escrow Distribution”) in the following priority: (i) first, each share of Company Series A Preferred Stock Fund (other than shares any amount of cash required to be canceled satisfy the maximum amount of the aggregate of any claims for indemnification for which written notice has been given to the Indemnifying Party in accordance with Section 2.1(b) ARTICLE VII and Dissenting Shares) issued which as of such one-year anniversary have not been finally determined), including any income or interest accrued thereon but less any Escrow Costs and outstanding immediately prior less any amounts then due and payable from the Indemnification Escrow Fund to any Parent Indemnitee pursuant to SECTION 7.2, shall be distributed by the Escrow Agent to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled Paying Agent in accordance with Section 2.1(bthe Escrow Agreement (any such remaining amounts, the "INDEMNIFICATION ESCROW FINAL BALANCE") and Dissenting Shares) issued and outstanding immediately prior to and, together with the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up toNet Earnings, in the aggregate, an amount equal to the difference, if any, between the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up"INDEMNIFICATION ESCROW SURPLUS"). The parties acknowledge and agree that any Parent shall be treated as the owner of the Indemnification Escrow Distribution, if any, will be paid second (after Fund for all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above)tax purposes.

Indemnification Escrow Fund. The Indemnification Escrow Amount (plus any interest At the Closing, the Purchaser or other income paid on such Indemnification Escrow Amount in accordance Acquisition Sub shall deposit, or shall cause the deposit of, with the Escrow Agreement) Custody Agent $55,000,000 (the “Indemnification Escrow Fund”) shall be available to compensate "INDEMNIFICATION ESCROW AMOUNT", and together with all earnings thereon, the Indemnified Parties for any Indemnifiable Losses suffered or incurred by them and for which they are entitled to recovery under Article VIII"INDEMNIFICATION ESCROW FUND"). The terms of, and timing and payment under, the Indemnification Escrow Fund shall be held in accordance with Article VIII and the Escrow Custody Agreement. Subject The Company hereby grants to the terms Purchaser, on behalf of its shareholders, effective as of the Effective Time, a security interest in the Indemnification Escrow Fund for all amounts which may become owed to Purchaser therefrom under this Agreement and Agreement. (a) Twenty-one (21) months after the Escrow Closing Date, the Custody Agent shall pay to the Representative, on behalf of the Unit Holders, pursuant to the Custody Agreement, the Released entire amount remaining in the Indemnification Escrow Amount payable to the Stockholders shall be allocated amongFund, and distributed to, the Stockholders such that with respect to any distribution of the Released Indemnification Escrow Amount pursuant to Section 2.4 of the Escrow Agreement (each an “Indemnification Escrow Distribution”) in the following priority: (i) first, each share of Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the differencesum of (x) $8,750,000 plus (y) the amount of any unresolved claims for indemnification by the Purchaser pursuant to Section 11.2(a) and Article XII hereof pursuant to which the Purchaser has duly notified the Representative and the Custody Agent pursuant to the Custody Agreement (the "UNRESOLVED CLAIMS AMOUNT") plus (z) the Tax Indemnity Amount. (b) On the fifth anniversary of the Closing Date (the "FINAL DISTRIBUTION DATE"), the Custody Agent shall pay to the Representative on behalf of the Unit Holders, pursuant to the Custody Agreement, the remaining balance of the Indemnification Escrow Fund; provided, that in the event of any unresolved claims for indemnification by the Purchaser pursuant to Section 11.2(a) and Article XII hereof pursuant to which the Purchaser has duly notified the Representative and the Custody Agent pursuant to the Custody Agreement, the amount to be so paid shall be reduced by the Unresolved Claims Amount, and the payment by the Custody Agent of amounts in the Indemnification Escrow Fund allocable to any such unresolved claim shall be paid upon the resolution of such unresolved claim in accordance with the Custody Agreement; provided, further, that if AGA LLC does not then have a net worth (determined in a manner consistent with past practice by AGA LLC) of at least $2,500,000 as certified to the Purchaser by a duly authorized representative of AGA LLC as of the Final Distribution Date, then, in such case, an amount (in addition to the Unresolved Claims Amount, if any) equal to $6,500,000 (the "AGA Amount") shall remain in the Indemnification Escrow Fund until the earlier of (x) such date on which a duly authorized representative of AGA LLC certifies to the Purchaser that AGA LLC then has a net worth of at least $2,500,000; and (y) July 31, 2006; and provided, further, that, if on the Final Distribution Date the Company is under audit or shall have received a notice of any income Tax audit for a Pre-Closing Period (as defined in Section 12.4(a)), an amount (in addition to the Unresolved Claims Amount, if any, between the Series A Liquidation Amount and the Series A Liquidation Amount (without taking into account the proviso to the definition of Series A Liquidation AGA Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid first to the holders of the Company Series A Preferred Stock in order to make up the shortfall, if any, of the full Series A Liquidation Preference Payment (as such term is defined in the Company’s Second Amended and Restated Certificate of Incorporation (the “Restated Charter”)) required to be paid by Section 4(a)(i) of Article Fourth of the Restated Charter; (ii) second, each share of Company Series 1 Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share a pro rata share of any Indemnification Escrow Distributions up to, in the aggregate, an amount equal to the difference, if any, between Tax Indemnity Amount shall remain in the Series 1 Liquidation Amount and the Series 1 Liquidation Amount (without taking into account the proviso to the definition of Series 1 Liquidation Amount), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, will be paid second (after Fund until such date on which all payments, if any, made pursuant to Section 2.2(a)(i) above) to the holders of the Company Series 1 Preferred Stock in order to make up the shortfall, if any, of the full Series 1 Liquidation Preference Payment (as such term is defined in the Restated Charter) required to be paid by Section 4(a)(ii) of Article Fourth of the Restated Charter; and (iii) third, each share of Company Common Stock audits are completed and Company Series A Preferred Stock (other than shares to be canceled in accordance with Section 2.1(b) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall represent the right to receive in respect of such share an amount equal its pro-rata share, on a per-share basis, of the remaining Indemnification Escrow Distribution (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above), in cash, without interest and rounded to the nearest cent ($0.01) (with amounts greater than or equal to $0.005 rounded up). The parties acknowledge and agree that any Indemnification Escrow Distribution, if any, paid pursuant to this Section 2.2(a)(iii) will be paid third (after all payments, if any, made pursuant to Section 2.2(a)(i) and Section 2.2(a)(ii) above)finally resolved.