Common use of Indemnification Escrow Clause in Contracts

Indemnification Escrow. Notwithstanding the foregoing provisions of this Article I to the contrary, on the Closing Date, the Stock Portion of the Merger Consideration (the “Indemnification Escrow Amount”) shall be delivered by Acquiror to the Escrow Agent, to be held in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of an escrow agreement (the “Indemnification Escrow Agreement”) to be entered into by and among Acquiror, the Holder Representative and the Escrow Agent in a form to be agreed upon between the date hereof and the Closing Date by Acquiror, the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable to the Acquiror pursuant to Section 1.5(d) hereof but only to the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the balance of the Indemnification Escrow Amount (less the aggregate amount of all claims for indemnification asserted in writing by the Purchaser Indemnitees prior to the Escrow Termination Date pursuant to Article XIII hereof to the extent not paid or satisfied prior to the Escrow Termination Date) to the holders of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to the Indemnification Escrow Agreement.

Indemnification Escrow. Notwithstanding the foregoing provisions of this Article I to the contrary, on On or before the Closing Date, the Stock Portion Parties and the Escrow Agent shall enter into the Indemnification Escrow Agreement, in form and substance acceptable to each of the Merger Consideration parties thereto, governing the terms and conditions of an escrow to be established by the Parties to fund the payment of, or to reimburse Purchaser for the payment of, any Losses that are covered by Seller’s indemnification obligations under Article IX and Article X of this Agreement (the “Indemnification Escrow”). The Indemnification Escrow Amount”shall commence with the deposit of the General Holdback and the Tax Holdback that are withheld from the payment of the Purchase Price at the Closing. The Tax Holdback within the Indemnification Escrow shall expire upon the Company Audit Completion and the General Holdback within the Indemnification Escrow shall expire upon the twelve (12) shall be delivered by Acquiror to month anniversary date of the Escrow AgentClosing Date, to be in each case whereupon all remaining, undisputed funds held in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant with respect to the provisions of an escrow agreement (applicable holdback will be released to Seller. Purchaser and Seller agree that for Tax purposes Purchaser will include in gross income all interest income on the “Indemnification Escrow Agreement”) to be entered into by and among Acquiror, the Holder Representative and the Escrow Agent in a form to be agreed upon between from the date hereof and funds are deposited in escrow until paid to Sellers. Purchaser shall be entitled to withdraw the Closing Date by Acquiror, Tax payments equal to 40% of the Company and taxable income from the Indemnification Escrow. Any funds paid from the Indemnification Escrow Agent, which form to Seller upon expiration of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable Indemnification Escrow will include interest income accrued to the Acquiror pursuant to Section 1.5(d) hereof but only to fund, less the extent provided Taxes thereon paid by Purchaser. Purchaser and Seller agree that for Tax purposes the funds in Section 1.5(d). At any time during the Indemnification Escrow Period, the Holder Representative may elect to remove any will remain property of the shares of Acquiror Common Stock from such escrow Purchaser and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing will not be treated as Seller’s property until paid by the Escrow Agent to disburse the balance of the Indemnification Escrow Amount (less the aggregate amount of all claims for indemnification asserted in writing by the Purchaser Indemnitees prior to the Escrow Termination Date pursuant to Article XIII hereof to the extent not paid or satisfied prior to the Escrow Termination Date) to the holders of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to the Indemnification Escrow AgreementSeller.

Indemnification Escrow. Notwithstanding As security for the foregoing provisions payment of this Article I an Indemnification Obligation of the Sellers arising pursuant to an Indemnification Claim, the Sellers authorize the Buyer to hold and deliver as Escrow Agent the Escrowed Shares pursuant to the contraryEscrow Agreement in the form of Exhibit A attached hereto. The Buyer is authorized to (i) withdraw from the Seller's portion of the Escrowed Funds described therein, if any, such amount and (ii) withdraw and cancel from the Seller's portion of the Escrowed Shares such number of Escrowed Shares based on the Escrow Share Indemnification Value needed to satisfy the Indemnification Obligation of the Seller. In the event all the Escrowed Shares and Escrowed Funds have not been delivered in satisfaction of Indemnification Obligations of the Sellers, on a date which is the corresponding date in the twelfth month following the Closing Date, the Stock Buyer as Escrow Agent shall deliver to each Seller such Seller's Portion of the Merger Consideration (Escrowed Shares and Escrowed Funds which based on the “Escrow Share Indemnification Escrow Amount”) Value as of such date are not reserved to satisfy Indemnification Obligations which may arise from outstanding Indemnification Claims of the Buyer as of such date. The Escrowed Shares and Escrowed Funds so reserved, if any, shall be delivered by Acquiror to the Escrow Agent, to be held in escrow (i) Buyer or the Sellers within five business days following the final determination as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of an escrow agreement (the “Indemnification Escrow Agreement”) to be entered into by and among Acquiror, the Holder Representative and the Escrow Agent in a form to be agreed upon between the date hereof and the Closing Date by Acquiror, the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable to the Acquiror pursuant to Section 1.5(d) hereof but only to the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the balance of the Indemnification Escrow Amount (less the aggregate amount of all claims for indemnification asserted in writing by the Purchaser Indemnitees prior to the Escrow Termination Date pursuant to Article XIII hereof to the extent not paid or satisfied prior to the Escrow Termination Date) to the holders of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to the Indemnification Escrow Agreement.Claims outstanding. To the extent an Indemnification Obligation of a Seller can not be satisfied by the delivery of the Escrowed Shares and Escrowed Funds, the Seller agrees to pay the balance to the Buyer within ten days of the determination of his or her Indemnification Obligation by wire transfer of immediate funds. (e)

Indemnification Escrow. Notwithstanding At the foregoing provisions Effective Time, Buyer shall withhold from the Closing Consideration otherwise payable in connection with the Merger an amount of this Article I cash equal to the contrary, on the Closing Date, the Stock Portion of the Merger Consideration (the “Indemnification Escrow Amount”) . Prior to or simultaneously with the Effective Time, the Equity Holders’ Representative and Buyer shall be delivered by Acquiror to enter into the Indemnification Escrow Agreement with the Escrow Agent, to be held Agent in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of an escrow agreement mutually acceptable form (the “Indemnification Escrow Agreement”) ). On the Closing Date and prior to the filing of the Plan of Merger and the Articles of Merger, Buyer shall deposit the Indemnification Escrow Amount in the Indemnification Escrow Account to be entered into managed by and among Acquiror, the Holder Representative and the Escrow Agent in a form pursuant to be agreed upon between the date hereof and the Closing Date by Acquiror, the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable to the Acquiror pursuant to Section 1.5(d) hereof but only to the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the balance of the Indemnification Escrow Agreement. Distributions of any cash from the Indemnification Escrow Amount (less the aggregate amount of all claims for indemnification asserted in writing shall be governed by the Purchaser Indemnitees prior terms and conditions of this Agreement and the Indemnification Escrow Agreement (the cash in the Indemnification Escrow Account at any given time, including all accrued interest, being referred to as the “Escrowed Remainder”). The Indemnification Escrow Amount shall be withheld from each Equity Holder based on such Person’s Percentage Ownership. Upon the expiration of the Survival Period, the Escrowed Remainder, less any claims pending under Article 8, shall be paid to the Escrow Termination Date pursuant to Article XIII hereof to the extent not paid or satisfied prior to the Escrow Termination Date) to the holders of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, Equity Holders in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to such Equity Holder’s Percentage Ownership of the Indemnification Escrow AgreementEscrowed Remainder.

Indemnification Escrow. Notwithstanding On the foregoing provisions of this Article I to Closing Date, Buyer, Seller and Wachovia Bank, N.A. the contrary("Escrow Agent") shall execute a Post-Closing Escrow Agreement substantially in the form attached as Exhibit C (the "Post-Closing Escrow Agreement") in accordance with which, on the Closing Date, the Stock Portion Buyer shall deposit Two Million Dollars ($2,000,000) of the Merger Consideration (the “Indemnification Escrow Amount”) shall be delivered by Acquiror to Purchase Price with the Escrow Agent, Agent (such deposit and all amounts held from time to be held in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of an escrow agreement (the “Indemnification Escrow Agreement”) to be entered into time by and among Acquiror, the Holder Representative and the Escrow Agent in respect of such deposit, including any interest or other earnings in respect of such deposit, the "Indemnification Funds") in order to provide a form fund for the payment of any claims for which Buyer is entitled to indemnification as provided in this Article 11. The Indemnification Funds shall be held and disbursed in accordance with the terms -40- 47 of this Agreement and the Post-Closing Escrow Agreement. On the first business day following the one year anniversary of the Closing Date, any Indemnification Funds not then subject to indemnification claims of Buyer under this Agreement shall be released by the Escrow Agent to Seller. If at any time before the one year anniversary of the Closing Date, Seller sells, transfers or otherwise transfers all or substantially all of its assets, Seller shall cause Six Million Dollars ($6,000,000) to be agreed upon between deposited with and held by Union Bank of California in a segregated account that will not be available to satisfy any obligations or liabilities of the date hereof Seller other than obligations to Buyer pursuant to this Article 11, and Seller shall provide Buyer with prompt reasonable evidence that such deposit has been made in accordance with the foregoing. Seller shall cause the entire $6,000,000 to be so held in such account until the one year anniversary of the Closing Date by Acquiror, Date. If on the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable to the Acquiror pursuant to Section 1.5(d) hereof but only to the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first one year anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror there are any outstanding claims for indemnification by Buyer against Seller under this Article 11 and the Holder Representative shall execute joint written instructions to stated amount of such claims exceeds the Escrow Agent instructing the Escrow Agent to disburse the balance amount of the Indemnification Funds then remaining and being held by the Escrow Amount (less Agent, Seller shall cause the aggregate amount of all such deficiency to continue to be so held in such account by Union Bank of California until such time as the one or more claims for indemnification asserted giving rise to such deficiency are resolved and Buyer has been paid any amounts to which it may be entitled in writing connection therewith, and Seller may cause any amounts so held by the Purchaser Indemnitees prior Union Bank of California in excess of such deficiency to the Escrow Termination Date be released to Seller. So long as Seller is required to hold any monies in such account pursuant to Article XIII hereof to the extent not paid or satisfied prior to the Escrow Termination Date) to the holders this Section 11.5, Seller shall provide Buyer with prompt reasonable evidence of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, amounts held in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to the Indemnification Escrow Agreementsuch account upon Buyer's request.

Indemnification Escrow. Notwithstanding the foregoing provisions of this Article I (a) The Escrow Shares will be delivered to the contraryEscrow Agent in accordance with the terms of Section 2 to be held and released in accordance with the Escrow Agreement as security of the indemnification obligations of the Securityholders under this Section 8 hereof. The Escrow Agreement will provide, among other things, that any portion of the Escrow Shares not previously released to Acquiror, or retained by Escrow Agent, as a result of an indemnification claim by Acquiror shall be released to the Securityholders on the Closing Date, Escrow Termination Date in accordance with the Stock Portion terms of the Merger Consideration (the “Indemnification Escrow Amount”) shall be Agreement; provided, however, that if there remain any unsatisfied claims specified in any Officer’s Certificate delivered by Acquiror to the Escrow Agent, to be held in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of an escrow agreement (the “Indemnification Escrow Agreement”) to be entered into by and among Acquiror, the Holder Representative and the Escrow Securityholders’ Agent in a form to be agreed upon between the date hereof accordance with Section 8.4 and the Closing Date by Acquiror, the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount payable to the Acquiror pursuant to Section 1.5(d) hereof but only to the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount equal to the Closing Stock Price for such share. Within five (5) Business Days of the date that is the first anniversary of the Closing Date (the “Escrow Termination Date”), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the balance of the Indemnification Escrow Amount (less the aggregate amount of all claims for indemnification asserted in writing by the Purchaser Indemnitees prior to the Escrow Termination Date pursuant with respect to Article XIII hereof to the extent not paid or satisfied facts and circumstances existing prior to the Escrow Termination Date) to the holders , a portion of the Common Escrow Shares and Options entitled to receive shall be retained by the Merger Consideration (pro rata, Escrow Agent in accordance with their respective Applicable Percentagesthe terms of the Escrow Agreement until such claims have been resolved (whether by agreement of the parties or as a result of any final decision, judgment or award). The portion of the Escrow Shares to be retained shall be based on the aggregate value of the unsatisfied claims as of the Escrow Termination Date, together which value shall be determined upon the mutual agreement of the parties, and if no such agreement can be reached within 15 days following the Escrow Termination Date, the Independent Accounting Firm shall determine the value of the unsatisfied claims, or, if the Independent Accounting Firm refuses to make such determination, then such dispute shall be resolved in accordance with Section 8.6 of this Agreement. For purposes of this Section 8, Securityholders that receive Stock Merger Consideration shall be entitled to use shares of Acquiror Common Stock issued as Stock Merger Consideration to satisfy Damages that are due and payable to an Acquiror Indemnified Person and any earnings thereon such shares of Acquiror Common Stock shall be valued at ***. *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Indemnification Escrow AgreementCommission.

Indemnification Escrow. Notwithstanding At the foregoing provisions Closing, each of this Article I to Buyer, Buyer Sub and the contrary, on the Closing Date, the Stock Portion of the Merger Consideration (the “Indemnification Escrow Amount”) shall be delivered by Acquiror to the Escrow Agent, to be held in escrow (i) as security for the indemnification obligations in favor of Acquiror under Article XIII pursuant to the provisions of Sellers’ Representative are executing and delivering an escrow agreement in substantially the form attached hereto as Exhibit I (the “Indemnification Escrow Agreement”) to be entered into by and among Acquiror). At the Closing, the Holder Representative and Buyer Sub is depositing with the Escrow Agent in a form to be agreed upon between portion of the date hereof and the Closing Date by Acquiror, the Company and the Escrow Agent, which form of agreement shall reflect the terms summarized on Annex C-2 attached hereto, and (ii) to provide security for amount Cash Consideration otherwise payable to the Acquiror pursuant to Section 1.5(d) hereof but only to Sellers and Cashed-Out Holders at the extent provided in Section 1.5(d). At any time during the Escrow Period, the Holder Representative may elect to remove any of the shares of Acquiror Common Stock from such escrow and replace each such removed share with cash in an amount Closing equal to the Closing Stock Price for such share. Within five (5) Business Days aggregate of the date that is amounts set forth opposite the first Sellers and Cashed-Out Holders’ names on Schedule IV hereto, for a total of $5,000,000 (the “Indemnification Escrow”). The Indemnification Escrow shall be held by the Escrow Agent pursuant to the terms of the Indemnification Escrow Agreement. Pursuant to the Indemnification Escrow Agreement, the full amount of the Indemnification Escrow shall be released by the Escrow Agent to the Sellers’ Representative on the six-month anniversary of the Closing Date (the “Escrow Termination Release Date”), each of Acquiror and in accordance with the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the balance terms of the Indemnification Escrow Amount (less the aggregate amount Agreement, minus any amounts of all any indemnity claims for indemnification asserted in writing by the Purchaser Indemnitees prior to the Escrow Termination Date made pursuant to Article XIII hereof VIII (whether or not such indemnity claims have been determined to be valid) as of the Release Date. At such time as all remaining claims have been resolved, any remaining amounts in the Indemnification Escrow shall be released and paid to the Sellers’ Representative. Any funds distributed from the Indemnification Escrow to the Sellers Representative shall be distributed upon release by the Sellers’ Representative to the Sellers and Cashed-Out Holders in the proportions set forth on Schedule IV hereto; provided that the Sellers’ Representative may round distribution amounts up or down to whole dollars to the extent not paid or satisfied prior to the Escrow Termination Date) to the holders of the Common Shares and Options entitled to receive the Merger Consideration (pro rata, in accordance with their respective Applicable Percentages), together with any earnings thereon pursuant to the Indemnification Escrow Agreementnecessary.