Common use of Indemnity and Escrow Fund Clause in Contracts

Indemnity and Escrow Fund. The Shareholders shall jointly and severally indemnify and hold harmless Buyer and the Company in respect of any and all Damages (as defined below) that Buyer or the Company incur by reason of any Indemnifiable Items (as defined below). To secure performance of such indemnification obligations, the Escrow Shares shall be deposited with the Escrow Agent in accordance with Section 1.3 hereof. The Escrow Fund shall be available to compensate Buyer and the Company 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 Buyer and the Company incur by reason of (i) the breach by the Shareholders of any representation, warranty, covenant or agreement of the Shareholders contained herein; and (ii) any of the matters set forth in Exhibit 6.1 hereto (collectively, (i) and (ii) shall be referred to as "Indemnifiable Items"). The Escrow Period shall terminate at the expiration of twelve (12) months following the Closing Date; provided that a portion of the Escrow Fund, which, in the reasonable judgment of Buyer, subject to the objection of the Shareholders' Agent and the subsequent resolution or arbitration of the matter in the manner provided in Section 6.4, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined in Section 6.2(a) below) theretofore delivered to the Escrow Agent prior to termination of the Escrow Period with respect to facts and circumstances existing prior to expiration of the Escrow Period, shall remain in the Escrow Fund until such claims have been resolved.

Indemnity and Escrow Fund. The Shareholders shall jointly 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 Buyer Quest and the Company Surviving Corporation in respect of any and all Damages (as defined below) that Buyer Quest or the Company 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 Agent in accordance with Section 1.3 hereofAgreement. The Escrow Fund shall be available to compensate Buyer Quest and the Company 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 Buyer Quest and the Company Surviving Corporation incur by reason of (i) the breach or alleged breach by the Shareholders Foglight of any representation, warranty, covenant or agreement of the Shareholders Foglight contained herein; and (ii) any of the matters set forth in Exhibit 6.1 8.1 hereto (collectively, (i) and (ii) shall be referred to as "Indemnifiable Items"). The Escrow Period Nothing contained in this Article VIII shall terminate at limit the expiration liability (i) of twelve (12) months following Foglight for any breach of any representation, warranty or covenant if the Closing Dateis not consummated; provided that a portion or (ii) of any stockholder of Foglight in connection with any breach by such stockholder of the Escrow Fund, which, in the reasonable judgment of Buyer, subject to the objection of the Shareholders' Agent and the subsequent resolution or arbitration of the matter in the manner provided in Section 6.4, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined in Section 6.2(a) below) theretofore delivered to the Escrow Agent prior to termination of the Escrow Period with respect to facts and circumstances existing prior to expiration of the Escrow Period, shall remain in the Escrow Fund until such claims have been resolvedVoting Agreement.

Indemnity and Escrow Fund. The Shareholders (a) From and after the Closing Date and subject to the limitations contained in this Article 11, the Securityholders shall jointly and severally indemnify and hold harmless Buyer the Purchaser and the Company in respect of and its Subsidiaries from and against any and all Damages (as defined below) that Buyer liability, loss, costs, expenses, claims or the Company incur by reason damages of any Indemnifiable Items (as defined below). To secure performance of such indemnification obligationsnature, the Escrow Shares shall be deposited with the Escrow Agent in accordance with Section 1.3 hereof. The Escrow Fund shall be available to compensate Buyer and the Company for any loss, expense, liability or other damage, including, without limitation, reasonable attorneys' feesincluding legal costs on a full indemnity basis, 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 liability, loss, cost, expense, liability claim or other damage (collectively, "Damages") that Buyer and suffered or incurred by the Purchaser or the Company incur or any of its Subsidiaries (whether directly or by virtue of any third party claim) by reason of (i) the breach by the Company or any of the Key Shareholders of any representation, warranty, covenant covenant, agreement or agreement other obligation of the Company or the Key Shareholders contained herein; or any of them hereunder (collectively, "DAMAGES"). (b) To secure performance of such indemnification obligations, the number of Exchangeable Shares equal in value to ten percent (10%) of the Purchase Price (the "ESCROW SHARES") shall be deposited with and registered in the name of Montreal Trust Company of Canada, as escrow agent, on the Closing Date, 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 the Purchaser and the Company for any Damages as hereinafter set forth. (c) The parties acknowledge and agree that (i) the Purchaser shall be entitled to obtain compensation for Damages from the Escrow Fund for any breach by the Company of any representation or warranty set forth in Article 7 and for any breach by the Company of any covenant, agreement or other obligation of the Company hereunder, in each case to the full extent of the Escrow Property and without regard to the ownership of the Escrow Property amongst the Securityholders or the amount of Exchangeable Shares or other Escrow Property contributed or accruing to the Escrow Fund by or for the benefit of any Securityholder, (ii) each Securityholder shall be fully liable for such Damages to the full extent of its share of the Escrow Property, and (iii) the Purchaser shall be entitled to be compensated for such Damages from any and all Escrow Property without regard to the nature of the breach resulting in such Damages. The Parties further acknowledge and agree that the Purchaser shall be entitled to obtain compensation for Damages from the Escrow Fund for any breach by any Key Shareholder of any representation or warranty of such Key Shareholder set forth in Article 8 and for any breach by any Key Shareholder of any covenant, agreement or other obligation of such Key Shareholder hereunder, in each case to the full extent of such Key Shareholder's share of the Escrow Property. Nothing contained in this Article 11 shall limit the liability of the Company or any of the matters set forth in Exhibit 6.1 hereto Key Shareholders for any breach of any representation, warranty or covenant if the Closing is not consummated. (collectively, (id) For purposes of determining the number and (ii) shall value of the Escrow Shares to be referred to as "Indemnifiable Items"). The deposited into the Escrow Period shall terminate at the expiration of twelve (12) months following Fund on the Closing Date; provided that a portion , the Exchangeable Shares shall be valued at the Average Price of the Quest Common Stock. (e) The Escrow Fund, whichShares shall be exchangeable, in the reasonable judgment of Buyerwhole or in part, subject to the objection of the Shareholders' Agent in accordance with their terms, and the subsequent resolution or arbitration shares of Quest Common Stock for which such Escrow Shares are exchangeable may be sold and the matter in the manner provided in Section 6.4, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined in Section 6.2(a) below) theretofore delivered to the Escrow Agent prior to termination of the Escrow Period with respect to facts and circumstances existing prior to expiration of the Escrow Period, shall remain proceeds from such sale deposited in the Escrow Fund until to be held in accordance with the terms of this Agreement and the Escrow Agreement, in each case with the prior written consent of the Purchaser, such claims have been resolvedconsent not to be unreasonably withheld or delayed. (f) If any Escrow Property is distributed from the Escrow Fund to the Purchaser in accordance with the terms of this Agreement and the Escrow Agreement to satisfy Damages claimed by the Purchaser, such Escrow Property shall be delivered in the following order of priority: first, any cash held in the Escrow Fund; second, any Escrow Shares; and third, any property held in the Escrow Fund other than cash or Escrow Shares.

Indemnity and Escrow Fund. The Shareholders (a) Subject to the limitations contained in this Article 10, the Vendors shall jointly and severally indemnify and hold harmless Buyer the Purchaser from and the Company against any and all liability, loss, costs, expenses, claims or damages of any nature (after taking into account any insurance proceeds in respect of any and all Damages (as defined below) that Buyer such liability, loss, costs, expenses, claims or damages received after the Closing Date by the Company or the Company incur by reason of any Indemnifiable Items (as defined belowPurchaser under their respective insurance policies). To secure performance of such indemnification obligations, the Escrow Shares shall be deposited with the Escrow Agent in accordance with Section 1.3 hereof. The Escrow Fund shall be available to compensate Buyer and the Company for any loss, expense, liability or other damage, including, without limitationincluding reasonable legal costs on a full indemnity basis, 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 liability, loss, cost, expense, liability claim or other damage suffered or incurred by the Purchaser (whether directly or by virtue of any third party claim) (collectively, "Claims") by reason of: (i) the breach by any of the Vendors of any representation, warranty, covenant, agreement or other obligation of the Vendors or any of them hereunder, (ii) the breach by the Company of any representation or warranty hereunder, or (iii) the breach by the Company of any covenant, agreement or other obligation hereunder, to the extent that such covenant agreement or other obligation is to be performed at or prior to the Closing, but excluding any such breaches disclosed to, and waived in writing by, the Purchaser prior to the Closing (collectively, "Damages"). (b) From and after the Closing Date, the Vendors shall (subject to the provisions of 10.7(c) and the other provisions of this Article 10) indemnify and hold harmless the Purchaser from and against any and all Claims arising out of, relating to or resulting from the items described in Schedule H (provided that Buyer in respect of paragraph 7 of Schedule H, such indemnity shall be limited to out-of-pocket costs and expenses up to $20,000). (c) To secure performance of the indemnification obligations set forth in Sections 10.1(a) and 10.1(b), but not in limitation of the obligations of the Vendors under Section 10.7, cash in the amount of Five Million Two Hundred Thousand Dollars ($5,200,000) (the "Escrow Amount") shall be withheld in the aggregate from the Purchase Price by the Purchaser and from the Option Holders Base Payment by the Company, and deposited by the Purchaser and the Company incur by reason in the Escrow Fund on the Closing Date. The Escrow Amount shall consist of (i) the Vendors' ratable share of the Escrow Amount, (ii) the Selling Option Holders' ratable share of the Escrow Amount, and (iii) the ratable share of the Escrow Amount in respect of the Remaining Shareholders and the Remaining Option Holders, subject to the provisions of Sections 3.10(d) and (e). The Purchaser shall also deposit in the Escrow Fund the amounts, if any, to be deposited therein in accordance with Sections 2.4(a)(iii)(B) and 2.7(B). (d) The Escrow Fund shall be governed by the terms set forth herein and in the Escrow Agreement and shall be held by the Escrow Agent for the benefit of the Purchaser, the Vendors, the Selling Option Holders and, subject to the provisions of Sections 3.10(d) and (e), the Remaining Shareholders and the Remaining Option Holders. (e) The parties acknowledge and agree that (i) the Purchaser shall be entitled to obtain compensation for Damages from the Escrow Fund for any breach of any representation or warranty set forth in Article 6 and for any breach by the Shareholders Company of any representationcovenant, warranty, covenant agreement or agreement other obligation of the Company hereunder to be performed on or before Closing, in each case to the full extent of the Escrow Fund and without regard to the beneficial entitlement in the Escrow Fund of the Vendors, the Selling Option Holders and, subject to the provisions of Sections 3.10(d) and (e), the Remaining Shareholders contained herein; and the Remaining Option Holders, or the amount of Escrow Monies contributed or accruing to the Escrow Fund by or for the benefit of any such person, and (ii) any each of the matters set forth in Exhibit 6.1 hereto (collectivelyVendors, (ithe Selling Option Holders and, subject to the provisions of Sections 3.10(d) and (ii) e), the Remaining Shareholders and the Remaining Option Holders shall be referred fully liable for such Damages to as "Indemnifiable Items"). The Escrow Period shall terminate at the expiration full extent of twelve (12) months following the Closing Date; provided that a portion its share of the Escrow Fund. The Parties further acknowledge and agree that the Purchaser shall be entitled to obtain compensation for Damages from the Escrow Fund for any breach by any Vendor of any representation or warranty of such Vendor set forth in Article 7 and for any breach by any Vendor of any covenant, whichagreement or other obligation of such Vendor hereunder, in each case to the reasonable judgment full extent of Buyersuch Vendor's share of the Escrow Fund. (f) The Purchaser shall, subject to the objection provisions of Sections 3.10(d) and (e), be entitled to the share of the Shareholders' Agent Escrow Fund held in respect of the Remaining Shareholders and the subsequent resolution or arbitration of Remaining Option Holders until the matter in the manner provided Purchaser shall, as contemplated in Section 6.43.10(d) or (e), is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined in Section 6.2(a) below) theretofore delivered the case may be, have given notice to the Escrow Agent prior that such Remaining Shareholders or Remaining Option Holders are entitled to termination their ratable share of the Escrow Period Fund (determined in accordance with respect to facts and circumstances existing prior to expiration of the Escrow Period, shall remain in the Escrow Fund until such claims have been resolvedAllocation Schedule).