Common use of Indemnity Escrow Fund Clause in Contracts

Indemnity Escrow Fund. The Indemnity Escrow Fund shall be held and disbursed by the Escrow Agent in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim of the Parent Indemnified Parties pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claim, to the extent that amount remaining in the Indemnity Escrow Fund exceeds the amount of all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) to the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata Percentages.

Indemnity Escrow Fund. The (a) At the Effective Time, Acquirer shall withhold each Indemnifying Holder’s Pro Rata Share of the Indemnity Escrow Amount from the Merger Consideration otherwise payable to such Indemnifying Holder pursuant to Section 1.3(a)(i), Section 1.3(a)(ii), Section 1.3(a)(iii)(A) and Section 1.3(a)(iv), and shall deposit the Indemnity Escrow Amount so withheld with the Escrow Agent (the aggregate amount of cash so held by the Escrow Agent from time to time, the “Indemnity Escrow Fund”), which Indemnity Escrow Fund shall be held and disbursed governed by the Escrow Agent in accordance with the terms of the Escrow this Agreement and this Agreement; provided, that the escrow agreement substantially in the event of conflict between form attached hereto as Exhibit K with such changes as Acquirer and the Securityholders’ Agent may agree in writing (the “Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement”). The Indemnity Escrow Fund shall constitute an escrow fund securing partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification claim obligations of the Parent Indemnified Parties pursuant to Indemnifying Holders under Section 1.6(f) and (h) and this Article IXVIII. Subject to Section 8.4, and shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent shall hold the Indemnity Escrow Fund until 11:59 p.m. California time on the date (the “Escrow Release Date”) that is 18 months after the Effective Time. The Indemnifying Holders shall not receive interest or other earnings on the cash in the Indemnity Escrow Fund. Neither the Indemnity Escrow Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to disburse any remaining portion Encumbrance, sold, assigned or transferred by any Indemnifying Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Indemnifying Holder, in each case prior to the distribution of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant Fund to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent Indemnifying Holder in accordance with Section 8.1(b), except that has not been finally resolved pursuant each Indemnifying Holder shall be entitled to this Article IX (each, a “Pending Claim”). Upon the resolution assign such Indemnifying Holder’s rights to such Indemnifying Holder’s Pro Rata Share of any Pending Claim, to the extent that amount remaining in the Indemnity Escrow Fund exceeds by will, by the amount laws of all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (intestacy or the total remaining amount, if applicable) to the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata Percentagesby other operation of law.

Indemnity Escrow Fund. The Indemnity Escrow Fund (a) If a Parent Indemnified Party is entitled to be indemnified for Losses arising out of or relating to the causes set forth in Section 8.2(a) (or Section 8.2(j) as it relates thereto), the obligation to pay the amount of indemnification owed hereunder shall be held and disbursed by the Escrow Agent in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim of the Parent Indemnified Parties pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become entitled to indemnification satisfied only from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal to and any Losses in excess of the Losses claimed by Indemnity Escrow Fund shall not be recoverable; provided, however, that the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has foregoing limitation shall not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claim, apply to the extent that amount remaining such Losses are also described in a subsection of Section 8.2 other than subsection (a) or (i) (or Section 8.2(j) as it relates thereto), or with respect to Losses arising out of or relating to the inaccuracy or breach of (i) any Fundamental Representation or IP Representation or (ii) any claim of fraud or intentional misrepresentation. If a Parent Indemnified Party is entitled to be indemnified for Losses arising out of or relating to an IP Representation (or Section 8.2(j) as it relates thereto), such Parent Indemnified Party shall seek recovery from the Indemnity Escrow Fund exceeds first, and then proceed directly against the amount of all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) to the Exchange Agent for distribution to the Company Members Effective Time Holders in accordance with their respective Pro Rata PercentagesPercentages for the remainder of any such Losses, subject to the IP Cap. If a Parent Indemnified Party is entitled to be indemnified for Losses arising out of or relating to (x) any cause set forth in Section 8.2, other than those set forth in Section 8.2(a) (or Section 8.2(j) as it relates thereto), (y) the inaccuracy or breach of any Fundamental Representation or (z) any claim of fraud or intentional misrepresentation, such Parent Indemnified Party shall have the choice of seeking recovery against the Indemnity Escrow Fund, proceeding directly against the Effective Time Holders in accordance with their respective Pro Rata Percentages to satisfy their indemnity obligations hereunder, setting off the amount of any Loss against any amounts due and unpaid, or otherwise subsequently payable, under this Agreement, or any combination of the foregoing. Except in the event of any Effective Time Holder’s individual fraud or individual intentional misrepresentation, an Effective Time Holder’s aggregate liability arising out of or relating to the Transactions is limited to the amount of Merger Consideration actually received by such Effective Time Holder.

Indemnity Escrow Fund. (a) The Indemnity Escrow Fund Shares shall be held the sole and disbursed exclusive source of recovery for the Buyer Indemnified Parties with respect to the Sellers’ indemnification obligations under Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii)(C) and Section 9.2(b)(i), other than with respect to claims for Losses as a result of, arising out of or relating to a breach of the Seller Fundamental Representations, the Company Fundamental Representations or the first sentence of Section 4.12 (Title to Assets) or to any claim for Fraud. To the extent that a Seller is required to make an indemnification payment pursuant to Section 7.5 or this Article IX, the first method of satisfaction of such payment, and the initial recourse to recover for such indemnification payment, shall be the release of Indemnity Escrow Shares in the Indemnity Escrow Fund in the manner provided in this Section 9.8 and the Escrow Agreement; and then, to the extent any amounts remain owing (subject to the limitations contained in this Article IX), such amounts shall be payable directly by the Escrow Agent applicable Seller in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreementcash. The Indemnity Escrow Shares to be deposited into the Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim will be issued in the names of the Parent Indemnified Parties Sellers, whether in book-entry or certificated form, with each Seller being issued such Seller’s Pro Rata Share of the Indemnity Escrow Shares. Whenever any disbursement of Indemnity Escrow Shares is made, such disbursement shall be comprised of Indemnity Escrow Shares registered in the name of the Seller that is required to satisfy an indemnity obligation or entitled to take receipt of such Indemnity Escrow Shares, as applicable, and in each case pursuant to this Article IXIX and the Escrow Agreement. Notwithstanding anything herein to the contrary, and no fractional Buyer Common Shares shall be used, if the Parent Indemnified Parties become entitled to indemnification disbursed from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claimand, to the extent that amount remaining in the Indemnity Escrow Fund exceeds the amount of all unresolved Pending Claimsany such fractional security would be required to be so disbursed but for this sentence, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (fractional security shall be rounded up or the total remaining amount, if applicable) down to the Exchange Agent for distribution to nearest whole number of the Company Members in accordance with their respective Pro Rata Percentages.applicable securities.2

Indemnity Escrow Fund. The On the Closing Date, Buyer shall deposit with the Escrow Agent an amount in cash equal to the Indemnity Escrow Fund Amount, consisting of each Securityholder’s Pro Rata Portion of the Indemnity Escrow Amount (which amounts shall be held set forth in the Consideration Spreadsheet (or the Updated Consideration Spreadsheet, if delivered pursuant to Section 3.2(c))) and disbursed by shall confirm such deposit in writing with the Escrow Agent, which notice shall confirm the Closing Date. Buyer shall pay fifty percent (50%) of the administrative fees and expenses of the Escrow Agent in connection with the Indemnity Escrow Amount, and the remainder of the administrative fees and expenses of the Escrow Agent in connection therewith will be treated as an Adjustment Item of the Company in accordance with Section 3.1(j). The aggregate contributions of the Securityholders’ respective Pro Rata Portion of the Indemnity Escrow Amount shall equal the amount of the Indemnity Escrow Amount. Such deposit of the Indemnity Escrow Amount, together with all interest and earnings thereon (which shall be taxable income to Buyer for U.S. federal (and applicable state) income Tax purposes as it is accrued or paid into the account in accordance with proposed Treasury Regulations Section 1.468B-8; provided that Buyer shall be entitled to income Tax distributions out of the Indemnity Escrow Fund equal to 25% of any such interest or earnings), shall constitute an escrow fund (the “Indemnity Escrow Fund”) to be governed solely by the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing be partial security for the indemnity obligations provided for in Section 9.2(a) hereof, subject to the limitations in this Agreement, including Section 9.6, and the Indemnity Escrow Fund shall be available to compensate the Buyer Indemnified Persons for any indemnification claim of the Parent claims by such Buyer Indemnified Parties pursuant Persons for any Losses for which they are entitled to recovery under this Article IX, and shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable subject to the Parent Indemnified Parties limitations in connection therewiththis Agreement. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claim, to the extent that amount remaining An interest in the Indemnity Escrow Fund exceeds may not be sold, exchanged, transferred or otherwise disposed of, other than by the amount laws of all unresolved Pending Claimsdescent and distribution or succession, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicableany transfer in violation of this Section 9.3(a) to the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata Percentagesshall be null and void.

Indemnity Escrow Fund. The Notwithstanding anything to the contrary herein, except for the remedies of specific performance, injunction and other equitable relief, including pursuant to Section 11.12, the Indemnity Escrow Fund shall be held the exclusive source to compensate the Buyer Indemnified Persons for the indemnification obligations of Seller under this Article IX; provided, however, that with respect to any claims based on (a) any inaccuracy of any of the Company Fundamental Representations, the Seller Fundamental Representations or the SOL Representations (if and disbursed only to the extent insufficient assets remain in the Indemnity Escrow Fund), (b) the indemnification obligations under Section 9.02(a)(i) following the release of the Indemnity Escrow Fund on the twelve (12) month anniversary of the Closing Date (or the next Business Day if such date is not a Business Day) pursuant to this Section 9.07, (c) the indemnification obligations under Section 9.02(a) (other than Section 9.02(a)(i)) or (d) Fraud Claims, the Buyer Indemnified Persons, subject to the limitations and other terms of this Article IX, shall be entitled to seek compensation for any Losses under this Article IX directly from Seller. Any amounts payable to the Buyer Indemnified Persons under this Article IX (other than amounts that the Buyer Indemnified Persons may recover directly from Seller in accordance with this Article IX) shall be paid by the Escrow Agent (on behalf of Seller) to such Buyer Indemnified Person out of the Indemnity Escrow Fund in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim of On the Parent Indemnified Parties pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first twelve (1st12) month anniversary of the Closing DateDate (or the next Business Day if such date is not a Business Day), Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent shall release to disburse Seller any remaining portion of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claim, to the extent that amount amounts then remaining in the Indemnity Escrow Fund exceeds less the amount of all any pending and unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) to the Exchange Agent claims for distribution to the Company Members in accordance with their respective Pro Rata Percentagesindemnity under this Article IX.

Indemnity Escrow Fund. The (a) At the Effective Time, Acquirer shall withhold the Indemnity Escrow Amount from the Merger Consideration payable and issuable pursuant to Section 1.3(a) and shall deposit the Indemnity Escrow Amount with Nevada Agency and Transfer Company, a Nevada corporation, as the escrow agent (the “Escrow Agent”) (the aggregate number of shares of Acquirer Common Stock so held by the Escrow Agent from time to time the “Indemnity Escrow Fund”), which Indemnity Escrow Fund shall be held governed by this Agreement and disbursed by the Escrow Agent in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Escrow Agent shall hold the Indemnity Escrow Fund until 11:59 p.m. Pacific time on the date (the “Escrow Release Date”) that is 18 months after the Effective Time (the “Escrow Period”). Except to the extent there is a cancellation of shares of Acquirer Common Stock held in the Indemnity Escrow Fund in connection with Indemnifiable Damages, shares of Acquirer Common Stock held in the Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim be treated by Acquirer as issued and outstanding stock of the Parent Indemnified Parties pursuant to this Article IXAcquirer, and the Contributing Equityholders shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons exercise voting rights and Company Members pursuant to this Article IX, solely receive dividends with respect to promptly satisfy the amount owed or payable such shares if and to the Parent Indemnified Parties in connection therewith. Promptly following extent declared by the first board of directors of Acquirer (1st) anniversary of the Closing Dateother than non-taxable stock dividends, Parent which shall be withheld by Acquirer and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion included as part of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon The Contributing Equityholders shall not receive interest or other earnings on the resolution shares of any Pending Claim, to Acquirer Common Stock (other than as set forth in the extent that amount remaining immediately preceding sentence) in the Indemnity Escrow Fund. Neither the Indemnity Escrow Fund exceeds the amount (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Contributing Equityholder or be taken or reached by any legal or equitable process in satisfaction of all unresolved Pending Claimsany debt or other Liability of any Contributing Equityholder, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) in each case prior to the Exchange Agent for distribution of the Indemnity Escrow Fund to the Company Members any Contributing Equityholder in accordance with their respective Section 8.1(b), except that each Contributing Equityholder shall be entitled to assign such Company Stockholder’s rights to such Contributing Equityholder’s Pro Rata PercentagesShare of the Indemnity Escrow Fund by will, by the laws of intestacy or by other operation of law.

Indemnity Escrow Fund. At the Effective Time the Company's shareholders, Company U.K. Option holders and MJS Warrant holder will be deemed to have received and deposited with the Escrow Agent (as defined below) the Indemnity Escrow Amount (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by Parent after the Effective Time) without any act of any shareholder. As soon as practicable after the Effective Time, the Indemnity Escrow Amount, without any act of any Company shareholder, Company U.K. Option holder or the MJS Warrant holder will be deposited with Chase Manhattan Bank and Trust Company, N.A. (or other institution acceptable to Parent and the Securityholder Agent (as defined in Section 8.2(h) below)) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Indemnity Escrow Fund") to be governed by the terms set forth herein. The portion of the Indemnity Escrow Amount contributed on behalf of each shareholder of the Company, holder of Company U.K. Options and the holder of the MJS Warrant shall be in proportion to the aggregate Parent Common Stock which such holder would otherwise be entitled under Sections 1.6(a), (f) and (g) and shall be in the respective share amounts and percentages listed opposite each holder's name listed in a schedule to be prepared by the Company and delivered to Parent at Closing (the "Indemnity Escrow Schedule"). The Indemnity Escrow Fund shall be held available to compensate Parent and disbursed its affiliates (including the Surviving Corporation) for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and reasonable expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses") actually incurred by Parent, its officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained herein (or in any certificate, instrument, schedule or document attached to this Agreement and delivered by the Company in connection with the Merger) or (ii) any failure by the Company to perform or comply with any covenant or obligation contained herein; provided that such claims must be asserted on or before 5:00 p.m. (California Time) on the Expiration Date. Except as otherwise provided herein, Parent may not receive any shares from the Indemnity Escrow Fund unless and until Officer's Certificates (as defined in Section 8.2(d) below) identifying Losses, the aggregate amount of which exceed $1,000,000 (except in the case of Losses arising from intentional fraud, willful misconduct or any breach or inaccuracy of Section 2.3, as to which such threshold shall not apply), have been delivered to the Escrow Agent as provided in paragraph (d) and such amount is determined pursuant to this Article VIII to be payable; in such case, Parent may recover shares from the Indemnity Escrow Fund equal in value to all indemnified Losses (including any Losses within the $1,000,000 threshold) for which there is no objection or any objection had been resolved in accordance with the terms provisions of this Article VIII. For purposes of this Article VIII, the phrases "Company shareholders" and "shareholders of the Escrow Agreement Company" shall refer to the shareholders and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim option holders of the Parent Indemnified Parties pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable immediately prior to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claim, to the extent that amount remaining in the Indemnity Escrow Fund exceeds the amount of all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) to the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata PercentagesEffective Time.

Indemnity Escrow Fund. The Indemnity On the Closing Date, CryoLife shall or shall cause Buyer to deposit with the Escrow Fund Agent an amount in cash equal to the Escrow Amount, consisting of each Securityholder’s Pro Rata Portion of the Escrow Amount (which amounts shall be held set forth in the Consideration Schedule) and disbursed by shall confirm such deposit in writing with the Escrow Agent, which notice shall confirm the Closing Date. CryoLife shall or shall cause Buyer to pay fifty percent (50%) of the administrative fees and expenses of the Escrow Agent in accordance connection with the Escrow Amount, with the remainder of the administrative fees and expenses to be paid by the Securityholders. The aggregate contributions of the Securityholders’ respective Pro Rata Portion of the Escrow Amount shall equal the amount of the Escrow Amount. Such deposit of the Escrow Amount, together with all interest and earnings thereon, shall constitute an escrow fund (the “Indemnity Escrow Fund”) to be governed solely by the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing be partial security for the indemnity obligations provided for in Section ‎9.2(a) hereof and for any indemnification claim of the Parent Indemnified Parties other obligations pursuant to this Article IXAgreement or the Related Agreements, subject to the limitations herein, including Section ‎9.6, and shall be used, if the Parent Indemnified Parties become entitled to indemnification from the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal Fund shall be available to compensate the Buyer Indemnified Persons for any claims by such Buyer Indemnified Persons for any Losses claimed by the Parent Indemnified Parties pursuant for which they are entitled to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to recovery under this Article IX (each, a “Pending Claim”)‎Article IX. Upon the resolution of any Pending Claim, to the extent that amount remaining Interest in the Indemnity Escrow Fund exceeds may not be sold, exchanged, transferred or otherwise disposed of, other than by the amount laws of all unresolved Pending Claimsdescent and distribution or succession, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicableany transfer in violation of this Section ‎9.3(a) to the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata Percentagesshall be null and void.

Indemnity Escrow Fund. The Indemnity Escrow Fund shall be held and disbursed by the Escrow Agent in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim of the Parent Indemnified Parties pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become Whenever a Buyer Indemnitee becomes entitled to indemnification from Losses hereunder, promptly thereafter the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Date, Parent and the Equityholders’ Securityholder Representative will jointly instruct shall execute joint instructions together with Buyer directing the Escrow Agent to disburse any remit from the Indemnity Escrow Fund to the Buyer a number of Parent Common Shares equal to the amount of such Losses divided by the volume-weighted average share price of the Parent Common Shares for the ten (10) consecutive trading days on the Relevant Exchange immediately preceding the date of such instructions (expressed in U.S. dollars, calculated using the exchange rate published by the Bank of Canada at xxxxx://xxx.xxxxxxxxxxxx.xx/rates/exchange/daily-exchange-rates/ for the last Business Day immediately preceding the date of such instructions); provided that, if the shares remaining in the Indemnity Escrow Fund are not sufficient to satisfy such Losses, to the extent sufficient cash remains in the Indemnity Escrow Fund, the Securityholder Representative shall execute joint instructions together with the Buyer directing the Escrow Agent to remit the excess amount of such Losses in cash (to the extent such amount remains in the Indemnity Escrow Fund) to the Buyer. The remaining portion of the Indemnity Escrow Fund, less an Fund minus the amount equal to of any unresolved indemnification claims or resolved but unreleased indemnification claims of the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant to this Article IX SECTION 9 shall be released (each, a “Pending Claim”). Upon i) in the resolution case of any Pending Claimcash, to the extent that amount remaining in the Indemnity Escrow Fund exceeds the amount of all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) to the Exchange Paying Agent for further distribution to the Company Members Securityholders based on their applicable Pro Rata Share and (ii) in the case of shares, to Parent’s transfer agent and registrar for the purpose of reissuing such shares to the Securityholders in accordance with their respective Pro Rata PercentagesShares, as directed by the Securityholder Representative, on the first (1st) Business Day after the end of the General Survival Period (the “Release Date”), and each of the Buyer and the Securityholder Representative shall be obligated to promptly execute and deliver written instructions to the Escrow Agent requesting that it release such amounts (the number of Parent Common Shares held back with respect to unresolved indemnification claims or resolved but unreleased indemnification claims shall be calculated on the basis of the amount of such claims divided by the volume-weighted average share price of the Parent Common Shares for the ten (10) consecutive trading days on the Relevant Exchange immediately preceding the Release Date) (expressed in U.S. dollars, calculated using the exchange rate published by the Bank of Canada at xxxxx://xxx.xxxxxxxxxxxx.xx/rates/exchange/daily-exchange-rates/ for the last Business Day immediately preceding the Release Date).