Common use of Indemnity and Escrow Fund Clause in Contracts

Indemnity and Escrow Fund. From and after the Effective Time and subject to the limitations contained in this Article VIII, the Former Foglight Stockholders will, severally and pro rata, in accordance with their Pro Rata Portion, indemnify and hold harmless Quest and the Surviving Corporation in respect of any and all Damages (as defined below) that Quest or the Surviving Corporation incur by reason of any Indemnifiable Items (as defined below). To secure performance of such indemnification obligations, as soon as practicable after the Effective Time, the Escrow Shares shall be deposited with and registered in the name of an escrow agent reasonably acceptable to Foglight and Quest (the "Escrow Agent"), such deposit to constitute the escrow fund (the "Escrow Fund") and to be governed by the terms set forth herein and in the Escrow Agreement. The Escrow Fund shall be available to compensate Quest and the Surviving Corporation for any loss, expense, liability or other damage, including, without limitation, reasonable attorneys' fees, accountants' fees, and all other reasonable costs and expenses of litigation, investigation, defense or settlement of claims (including costs of all appeals related thereto) or threats thereof and amounts paid in settlement to the extent of the amount of such loss, expense, liability or other damage (collectively, "Damages") that Quest and the Surviving Corporation incur by reason of (i) the breach or alleged breach by Foglight of any representation, warranty, covenant or agreement of Foglight contained herein; and (ii) any of the matters set forth in Exhibit 8.1 hereto (collectively, (i) and (ii) shall be referred to as "Indemnifiable Items"). Nothing contained in this Article VIII shall limit the liability (i) of Foglight for any breach of any representation, warranty or covenant if the Closing is not consummated; or (ii) of any stockholder of Foglight in connection with any breach by such stockholder of the Voting Agreement.

Indemnity and Escrow Fund. From The holders of Starseed Common Stock, and after ------------------------- options to purchase Starseed Common Stock, immediately prior to the Effective Time and subject to the limitations contained in this Article VIIITime, the Former Foglight Stockholders will, severally and pro rata, in accordance with their Pro Rata Portion, shall indemnify and hold harmless Quest GeoCities and the Surviving Corporation in respect of any and all Damages (as defined below) that Quest GeoCities or the Surviving Corporation incur by reason of any Indemnifiable Items (as defined below). To secure performance of such indemnification obligations, as soon as practicable after the Effective Time, 116,250 of the Merger Shares plus that number of Merger Shares having a value (based on the Average Price) equal to $405,000 (collectively, the "Escrow Shares Shares") shall be deposited with and ------------- registered in the name of an institution selected by GeoCities with the consent of Starseed (which consent shall not be unreasonably withheld) as escrow agent reasonably acceptable to Foglight and Quest (the "Escrow Agent"), such deposit to constitute the escrow fund (the "Escrow ------------ ------ Fund") and to be governed by the terms set forth herein and in the Escrow Agreement---- Agreement attached hereto as Exhibit 5.10. The Escrow Fund shall be available to compensate Quest GeoCities and the Surviving Corporation for any loss, expense, liability or other damage, including, without limitation, reasonable attorneys' fees, accountants' fees, and all other reasonable costs and expenses of litigation, investigation, defense or settlement of claims (including costs of all appeals related thereto) or threats thereof and amounts paid in settlement to the extent of the amount of such loss, expense, liability or other damage (collectively, "Damages") that Quest GeoCities and the Surviving Corporation incur by ------- reason of (i) the breach by Starseed or alleged breach by Foglight any Founder of any representation, warranty, covenant or agreement of Foglight Starseed or any Founder contained herein; and (ii) any of the matters set forth in Exhibit 8.1 hereto (collectively, (i) and (ii) shall be referred to as "Indemnifiable Items"). Nothing contained in this ------------------- Article VIII shall limit the liability (i) of Foglight Starseed or any Founder for any breach of any representation, warranty or covenant if the Closing is Merger does not consummatedclose; or (ii) of any stockholder of Foglight Starseed shareholder in connection with any breach by such stockholder shareholder of the Voting Agreement.. GeoCities and the Surviving Corporation hereby agree that prior to seeking recourse from or bringing a claim against any Starseed shareholder or option holder (including the Founders) individually for any Damages, they will first seek to be made whole for any Damages from the Escrow Fund. 37

Indemnity and Escrow Fund. From and after the Effective Time and subject to the limitations contained in this Article VIII, the Former Foglight Stockholders will, severally and pro rata, in accordance with their Pro Rata Portion, The Shareholders shall indemnify and hold harmless Quest and the Surviving Corporation in respect of any and all Damages (as defined below) that Quest or the Surviving Corporation incur by reason of any Indemnifiable Items (as defined below). To secure performance of such indemnification obligations, as soon as practicable after the Effective Time, 10% of the Merger Shares (the "Escrow Shares Shares") shall be deposited with and registered in the name of an Quest as escrow agent reasonably acceptable to Foglight and Quest (the "Escrow Agent"), such deposit to constitute the escrow fund (the "Escrow Fund") and to be governed by the terms set forth herein and in the Escrow AgreementAgreement attached hereto as Exhibit 5.7. The Escrow Fund shall be available to compensate Quest and the Surviving Corporation for any loss, expense, liability or other damage, including, without limitation, reasonable attorneys' fees, accountants' fees, and all other reasonable costs and expenses of litigation, investigation, defense or settlement of claims (including costs of all appeals related thereto) or threats thereof and amounts paid in settlement to the extent of the amount of such loss, expense, liability or other damage (collectively, "Damages") that Quest and the Surviving Corporation incur by reason of (i) the breach by MBR or alleged breach by Foglight any Shareholder of any representation, warranty, covenant or agreement of Foglight MBR or any Shareholder contained herein; and (ii) any of the matters set forth in Exhibit 8.1 hereto (collectively, (i) and (ii) shall be referred to as "Indemnifiable Items"). Nothing contained in this Article VIII shall limit the liability (i) of Foglight MBR or any Shareholder for any breach of any representation, warranty or covenant if the Closing is Merger does not consummatedclose; or (ii) of any stockholder of Foglight Shareholder in connection with any breach by such stockholder Shareholder of the Voting Agreement.

Indemnity and Escrow Fund. From and after the Effective Time and subject to the limitations contained in this Article VIII, the Former Foglight Stockholders will, severally and pro rata, in accordance with their Pro Rata Portion, The Shareholders shall indemnify and --------------------------- hold harmless Quest PhotoLoft and the Surviving Corporation in with respect of to any and all Damages (as defined below) that Quest PhotoLoft or the Surviving Corporation incur by reason of any Indemnifiable Items (as defined below). To secure performance of such indemnification obligations, as soon as practicable after the Effective Time, the Escrow Shares shall be deposited with and registered in the name of an institution selected by PhotoLoft with the consent of the Shareholders (which consent shall not be unreasonably withheld) as escrow agent reasonably acceptable to Foglight and Quest (the "Escrow Agent"), such deposit to . Such deposited shares shall constitute the escrow fund (the "Escrow Fund") to secure the performance of the indemnification obligation contained in this Section 10.1 and to be governed by the terms set forth herein and in the Escrow AgreementAgreement attached hereto as Exhibit 7.10. The Escrow Fund shall be available to compensate Quest PhotoLoft and the Surviving Corporation for any loss, expense, liability or other damage, including, without limitation, reasonable attorneys' fees, accountants' fees, and all other reasonable costs and expenses of litigation, investigation, defense or settlement of claims (including costs of all appeals related thereto) or threats thereof and amounts paid in settlement to the extent of the amount of such loss, expense, liability or other damage (collectively, "Damages") that Quest PhotoLoft and the Surviving Corporation incur by reason of (i) the breach by EVG or alleged breach by Foglight any Shareholder of any representation, warranty, covenant or agreement of Foglight EVG or any Shareholder contained herein; and (ii) any of the matters set forth in Exhibit 8.1 10.1 hereto (collectively, (i) and (ii) shall be referred to as "Indemnifiable Items"). Nothing Except as provided in Section 10.9, nothing contained in this Article VIII ARTICLE X shall limit the liability (i) of Foglight EVG or any Shareholder for any breach of any representation, warranty or covenant if the Closing this Agreement is not consummated; or (ii) of any stockholder of Foglight in connection with any breach by such stockholder of the Voting Agreementterminated pursuant to Section 9.1.