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 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 any 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 to any Indemnifying Holder in accordance with Section 8.1(b), except that each Indemnifying Holder shall be used, if the Parent Indemnified Parties become entitled to assign such Indemnifying Holder’s rights to such Indemnifying Holder’s Pro Rata Share of the Indemnity Escrow Fund by will, by the laws of intestacy or by other operation of law. (b) Within five (5) Business Days following the Escrow Release Date, the Escrow Agent will distribute to each Indemnifying Holder such Indemnifying Holder’s Pro Rata Share of the Indemnity Escrow Fund less that portion of the Indemnity Escrow Fund that is determined, in the reasonable judgment of Acquirer, to be necessary to satisfy all unsatisfied or disputed claims for indemnification from specified in any Claim Certificate delivered to the Key Persons and Company Members pursuant Securityholders’ Agent on or prior to the Escrow Release Date in accordance with this Article IXVIII, solely to promptly satisfy which portion shall remain in the amount owed Indemnity Escrow Fund until such claims for Indemnifiable Damages have been resolved or payable to satisfied. Any portion of the Parent Indemnified Parties in connection therewith. Promptly Indemnity Escrow Fund held by the Escrow Agent following the first (1st) anniversary Escrow Release Date with respect to pending but unresolved claims for indemnification that is not awarded to Acquirer upon the resolution of the Closing Date, Parent and the Equityholders’ Representative will jointly instruct such claims shall be distributed by the Escrow Agent to disburse any remaining the Paying Agent or Acquirer, as applicable, for distribution to the Indemnifying Holders within five (5) Business Days following resolution of such claims and in accordance with each such Indemnifying Holder’s Pro Rata Share of such 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 Closing, Buyer shall deposit the Indemnity Escrow Amount with the Escrow Agent pursuant to Section 2.5(a) (the aggregate amount of cash held by the Escrow Agent pursuant to this Section 9.2, from time to time, the “Indemnity Escrow Fund”), which Indemnity Escrow Fund shall be held and disbursed by the Escrow Agent in accordance with the terms of pursuant to this Agreement and 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 Subject to Section 9.5, the Indemnity Escrow Fund shall constitute an escrow fund securing partial security for the benefit of Buyer (on behalf of itself or any indemnification claim of the Parent other Indemnified Parties Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of Seller under this Article IX. Subject to Section 9.2(b), and the Escrow Agent shall hold the Indemnity Escrow Fund until 11:59 p.m. local time on the date (the “Indemnity Escrow Release Date”) that is twelve (12) months after the Closing Date. Neither the Indemnity Escrow Fund (including any portion thereof) nor any beneficial interest therein may be usedpledged, if the Parent Indemnified Parties become entitled subjected to indemnification from the Key Persons and Company Members pursuant to this Article IXany Lien, solely to promptly satisfy the amount owed sold, assigned or payable transferred by Seller or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of Seller, in each case prior to the Parent Indemnified Parties distribution of the Indemnity Escrow Fund to Seller in connection therewith. accordance with Section 9.2(b). (b) Promptly following the first Indemnity Escrow Release Date (1stbut in no event later than two (2) anniversary of the Closing DateBusiness Days thereafter), Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent shall distribute to disburse Seller any remaining amount in the Indemnity Escrow Fund less that portion of the Indemnity Escrow Fund, less an amount Fund equal to the Losses claimed by aggregate value of all unsatisfied or disputed Indemnifiable Damages set forth in any Claim Certificate delivered to Seller on or prior to 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 Indemnity Escrow Release Date in accordance with this Article IX (each, a “Pending Claim”which disputed amounts shall remain in escrow and shall only be released to Seller following the Indemnity Escrow Release Date upon final determination in Seller’s favor with respect to such disputed Indemnifiable Damages until such dispute is resolved). Upon the resolution Any portion of any Pending Claim, to the extent that amount remaining in the Indemnity Escrow Fund exceeds held by the amount Escrow Agent following the Indemnity Escrow Release Date with respect to pending but unresolved claims for indemnification that is not awarded to Buyer upon the resolution of all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct such claims shall be distributed by the Escrow Agent to release Seller within five (5) Business Days following resolution of 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 Percentagesclaims.

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 nearest whole number of the applicable securities.2 (b) Anything in this Article IX to the Company Members in accordance contrary notwithstanding, the rights and obligations of the parties with their respective Pro Rata Percentagesrespect to indemnification for any and all Tax matters shall be governed by Article VII to the extent this Article IX is inconsistent with Article VII.

Indemnity Escrow Fund. (i) The Indemnity Company Shareholders agree to indemnify and hold Parent and its Representatives and Affiliates (collectively, the "Indemnified Persons") harmless from and against all claims, losses, liabilities, damages, deficiencies, costs, expenses (including reasonable attorneys' fees and expenses of investigation) and diminution in value (hereinafter individually a "Loss" and collectively "Losses") incurred by the Indemnified Persons directly or indirectly as a result of (A) any inaccuracy or breach of a representation or warranty of the Company contained in this Agreement, or (B) any failure by the Company or any Company Shareholder to perform or comply with any covenant contained in this Agreement. Except as otherwise provided in Sections 10.3 and 10.4, the Escrow Fund shall be held the sole remedy to compensate the Indemnified Persons for such Losses. Company Shareholders shall not have any right of contribution from Parent with respect to any Loss claimed by Parent. Parent and disbursed by the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. (ii) As soon as practicable after the Effective Time, shares of Parent Common Stock which comprise the Escrow Amount, without any act of any Company Shareholder, will be deposited with ChaseMellon Shareholder Services, L.L.C., as Escrow Agent in accordance with (the terms of the "Escrow Agreement and this Agreement; providedAgent"), that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties such deposit to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim (the "Escrow Fund") to be governed by the terms set forth herein. The portion of the Parent Indemnified Parties pursuant to this Article IX, and Escrow Amount contributed on behalf of each Company Shareholder shall be usedin proportion to the aggregate Merger Consideration which such holder would otherwise be entitled under Section 3.1. The Escrow Agent shall not be responsible for confirming that the shares contributed to the Escrow Fund comprise the Escrow Amount or that the portion contributed on behalf of each Company Shareholder is in the proper proportion, if which determination shall be made by Parent. (iii) Notwithstanding anything contained in Section 10.2(a)(i) and except as set forth in Section 10.4, the Company Shareholders shall not have any liability or obligation to indemnify any Indemnified Person for any Losses unless and until Officer's Certificates (as hereinafter defined) shall have been delivered with respect to Losses which equal or exceed two hundred fifty thousand dollars ($250,000) in the aggregate for all Losses (the "Basket Amount"). At such time as Officer's Certificates with respect to Losses which meet the foregoing thresholds have been delivered, Parent Indemnified Parties become and Sub shall be entitled to indemnification from for all Losses, including the Key Basket Amount. (iv) The Escrow Fund shall be available to compensate the Indemnified Persons and Company Members for Losses. However, the failure to make a claim against the Escrow Fund will not constitute an election of remedies or limit the Indemnified Persons in any manner in the enforcement of any other remedies that may be available to them 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 Percentagesterms hereof.

Indemnity Escrow Fund. The (a) At the Closing, Acquirer will withhold the Indemnity Escrow Fund shall Amount from the Aggregate Consideration payable pursuant to Section 1.4(a) and deposit the Indemnity Escrow Amount with PNC Bank, National Association (the “Escrow Agent”), such deposit, together with any interest that may be held earned thereon, to constitute an escrow fund (the “Indemnity Escrow Fund”) and disbursed to be governed by the Escrow Agent in accordance with the terms of the Escrow this Agreement and this the escrow agreement in substantially the form attached hereto as Exhibit M with such changes as Acquirer and, if prior to the Closing, the Company and if following the Closing, the Stockholders’ Agent may agree in writing (the “Escrow 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. ”). (b) 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 Converting Holders under this Article IXVIII. Subject to Section 8.5, and the Escrow Agent shall hold the Indemnity Escrow Fund until 11:59 p.m. Pacific Time on the date that is 15 months following the Closing Date (the “Escrow Release Date”). Neither the Indemnity Escrow Fund (including any portion thereof) nor any beneficial interest therein may be usedpledged, if the Parent Indemnified Parties become entitled subjected to indemnification from the Key Persons and Company Members pursuant to this Article IXany Encumbrance, solely to promptly satisfy the amount owed sold, assigned or payable transferred by any Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the Parent Indemnified Parties distribution of the Indemnity Escrow Fund to any Converting Holder in connection therewith. Promptly accordance with Section 8.2(c), except by will, by the laws of intestacy or by other operation of law. (c) Within five Business Days following the first (1st) anniversary of the Closing Escrow Release Date, Parent Acquirer (or its agent) and the EquityholdersStockholders’ Representative will jointly instruct Agent shall deliver a joint written instruction (a “Joint Instruction”) to the Escrow Agent directing the Escrow Agent to disburse any remaining portion distribute to each Converting Holder such Converting Holder’s Pro Rata Share of the Indemnity Escrow Fund, less an amount equal that portion of the Escrow Fund that is determined, in the reasonable judgment of Acquirer, to be necessary to satisfy all unsatisfied or disputed claims for indemnification specified in any Claim Certificate delivered to the Losses claimed by Stockholders’ Agent on or prior to 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 Escrow Release Date in accordance with this Article IX VIII (eachany such claim, a “Pending Claim”). Upon the resolution of any Pending Claim, to the extent that amount remaining which portion shall remain in the Indemnity Escrow Fund exceeds until such claims for Indemnifiable Damages have been resolved or satisfied (it being understood that the portion withheld for a particular unsatisfied or disputed claim will only be available to satisfy such claim and not any other unsatisfied or disputed claim, except to the extent that the amount of all unresolved Pending Claims, if any, Parent and such claims exceeds the Equityholders’ Representative will jointly instruct amount then in the Indemnity Escrow Agent Fund (meaning the same dollars are subject 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 Percentagesmultiple claims)).

Indemnity Escrow Fund. (a) As soon as practicable after the Effective Time, Parent shall cause to be delivered to the Indemnity Escrow Agent the Indemnity Escrow Fund. The Indemnity Escrow Fund shall be available to compensate the Parent Indemnitees pursuant to the indemnification obligations of the Indemnitors and to fund payments required to be made out of the Indemnity Escrow Fund by Section 2.10. The Indemnity Escrow Fund shall be held and disbursed by the Indemnity Escrow Agent in accordance with the Indemnity Escrow Agreement. Unless released earlier to Parent pursuant to this Agreement and the Indemnity Escrow Agreement, the Indemnity Escrow Fund will be held by the Indemnity Escrow Agent until the date that is one Business Day after the date that is one year from the Effective Time (the “Escrow Termination Date”). Upon the Escrow Termination Date the remaining Indemnity Escrow Fund (other than any amounts retained by the Indemnity Escrow Agent in respect of pending claims pursuant to the terms of the Indemnity Escrow Agreement Agreement) shall be distributed to the holders of the Company Series A-1 Preferred Shares (other than any holder who continues to be a holder of Dissenting Shares). (b) The Indemnitors shall not have any right of indemnification or contribution from Parent or the Surviving Corporation with respect to any Loss claimed by any Parent Indemnitee after the Effective Time. The Indemnitors acknowledge and this Agreement; providedagree that, that if the Surviving Corporation suffers, incurs or otherwise becomes subject to any Losses as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or agreement, then (without limiting any of the rights of the Surviving Corporation as a Parent Indemnitee) Parent shall also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to have incurred Losses as a result of and in connection with such inaccuracy or breach. (c) Except in the event case of conflict between fraud, the Escrow Agreement and indemnification provided in this Agreement, this Agreement shall prevail as among Article IX (which is limited to the parties to this Agreement. The release from the Indemnity Escrow Fund subject to and in accordance with the Indemnity Escrow Agreement) shall constitute an escrow fund securing any indemnification claim of be the sole and exclusive post-Closing remedy for Losses available to the Parent Indemnified Parties Indemnitees against the Company Stockholders and the Company for any Losses incurred or suffered 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 Agreement or payable to the Parent Indemnified Parties in connection therewithwith the Merger. Promptly following In no event shall the first (1st) anniversary aggregate liability of the Closing Date, Parent Company Stockholders for any and all such Losses exceed the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion total amount 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. (i) From and after the Closing Date, the Company Share- holders, pro rata based on the Parent Common Stock deposited in the Escrow Fund on behalf of the Company Shareholders, agree to indemnify and hold Parent and its Representatives and Affiliates (including the Company) (collectively, the "INDEMNIFIED PERSONS") from and harmless against all claims, losses, liabilities, damages, deficiencies, costs, expenses (including reasonable attorneys' fees and expenses of investigation) and diminution in value (hereinafter individually a "LOSS" and collectively "LOSSES") incurred by the Indemnified Persons directly or indirectly as a result of (A) any inaccuracy or breach of a representation or warranty of the Company contained in this Agreement (as modified by the Company Disclosure Letter) or in any instrument delivered by the Company pursuant to this Agreement, or (B) any failure by the Company to perform or comply with any covenant contained in this Agreement that is required to be performed or complied with by the Company prior to the Closing. The Indemnity Escrow Fund shall be held available to compensate the Indemnified Persons for such Losses. Company Shareholders shall not have any right of contribution from Parent with respect to any Loss claimed by Parent. Parent and disbursed the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. Nothing in this SECTION 10.2 shall limit the liability of the Company for any breach of a covenant, representation or warranty if the Merger is not consummated. (ii) As soon as practicable after the Effective Time, shares of Parent Common Stock which comprise the Escrow Amount, without any act of any Company Shareholder, will be deposited with Chase Manhattan Bank and Trust Company N.A., as Escrow Agent (the "ESCROW AGENT"), such deposit to constitute an escrow fund (the "ESCROW FUND") to be governed by the terms set forth herein. The Escrow Agent in accordance with shall not be responsible for confirming that the terms of shares contributed to the Escrow Agreement Fund comprise the Escrow Amount or that the portion contributed on behalf of each Company Shareholder is in the proper proportion, which determination shall be made by Parent. (iii) Notwithstanding anything contained herein to the con- trary, other than as set forth in the last sentence of this paragraph, the Company Shareholders shall not have any liability or obligation to indemnify or hold harmless any Indemnified Person for any Losses unless and until Losses are incurred which would be indemnifiable under SECTION 10.2(A) above but for the provisions of this Agreement; providedSECTION 10.2(A)(III) in an amount equal to or exceeding $500,000 in the aggregate (the "BASKET AMOUNT"). At such time as Losses which meet the foregoing threshold have been incurred and would be indemnifiable under SECTION 10.2(A) above but for the provisions of this SECTION 10.2(A)(III), that Parent and Sub shall be entitled to indemnification for all Losses, which would be indemnifiable under SECTION 10.2(A), including the Basket Amount. Notwithstanding the foregoing, in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail any Loss incurred as among the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing a result of any indemnification claim inaccuracy or breach of the Parent Indemnified Parties pursuant to this Article IXrepresentations and warranties of the Company contained in Section 5.6(b) hereof or any Officer Claim Loss (as defined in SECTION 3.9(B) hereof), and the Company Shareholders shall be used, if required to indemnify and hold harmless the Parent Indemnified Parties become entitled to indemnification from Persons for such Loss without regard whether aggregate Losses exceeding 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 foregoing Basket Amount have 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 Percentagesincurred.

Indemnity Escrow Fund. The (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 satisfied only from the Indemnity Escrow Fund, and any Losses in excess of the Indemnity Escrow Fund shall not be held recoverable; provided, however, that the foregoing limitation shall not apply to the extent that 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 first, and disbursed by then proceed directly against the Escrow Agent Effective Time Holders in accordance with their respective Pro Rata Percentages 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. (b) Upon the termination of the Indemnity Escrow Fund pursuant to 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 shall deliver the 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 Fund (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 (in respect of the portion payable in respect of Shares and Non-Employee Options) and the Surviving Corporation (in respect of the portion payable in respect of Employee Options) for distribution delivery to the Company Members Effective Time Holders in accordance with their respective Pro Rata Percentages. (c) Notwithstanding the Effective Time Holders’ several (and not joint) liability under Section 8.2, and a particular Effective Time Holder’s maximum liability under Section 8.5(d), Parent Indemnified Parties may recover all Losses in respect of Section 8.2 from the Indemnity Escrow Fund without regard to such limitations applicable to recovery directly from Effective Time Holders. (d) Notwithstanding anything to the contrary set forth in this Agreement, no Holder shall have a claim or right of indemnity against the Company for breach of any of the Company’s representations, warranties or covenants contained herein.

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).

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) Any interest on cash held or distributions on the shares of Parent Common Stock that are held in the Indemnity Escrow Fund, other than regular cash dividends, shall be held by the Escrow Agent and shall be deemed attached to the cash or shares of Parent Common Stock to which they pertain. For applicable income Tax purposes, any such interest or shares of Parent Common Stock or securities distributed in respect thereof shall be treated as owned by, and any dividends, interest or other income earned on the Indemnity Escrow Fund shall be treated as income of, the Selling Shareholder on whose behalf such cash, securities or assets giving rise to such interest or other income, as the case may be, are being held. The Selling Shareholders shall not have the right to sell, transfer, pledge, hypothecate or otherwise dispose of any cash or securities held and disbursed in the Indemnity Escrow Fund or any interest therein for so long as they are held in the Indemnity Escrow Fund. Each Selling Shareholder shall be entitled to vote the shares of Parent Common Stock held in the Indemnity Escrow Fund for so long as they are held by the Escrow Agent, relative to the value of the shares of Parent Common Stock deposited in the Indemnity Escrow Fund on behalf of such Selling Shareholder. For purposes of determining the value of any shares of Parent Common Stock included in the Indemnity Escrow Fund and for purposes of determining the amount of any indemnity claim satisfied with shares of Parent Common Stock held in such Indemnity Escrow Fund, each such share of Parent Common Stock held in such Indemnity Escrow Fund shall be deemed to have a value equal to the Average Price. (b) If a Parent Indemnified Party is entitled to be indemnified for Losses arising out of or relating to General Indemnity Matters, the obligation to pay the amount of indemnification owed hereunder shall be satisfied only from the Indemnity Escrow Fund, and any Losses in excess of the Indemnity Escrow Fund shall not be recoverable; provided, however, that the foregoing limitation shall not apply with respect to Losses arising out of or relating to Special Indemnity Matters. If a Parent Indemnified Party is entitled to be indemnified for Losses arising out of or relating to any Special Indemnity Matters, the Parent Indemnified Party shall first seek recovery against the Indemnity Escrow Fund to the extent of the Indemnifying Party’s interest, and if the Indemnifying Party’s interest in the Indemnity Escrow Fund will be insufficient to satisfy the indemnity obligations owing to the Parent Indemnified Party, the Parent Indemnified Party shall have the choice of concurrently proceeding directly against the Indemnifying Party to satisfy its remaining indemnity obligations hereunder, subject to the limitations set out in this Agreement, and shall have the right to set-off the amount of any Losses against any amounts due and unpaid, or otherwise subsequently payable to such Indemnifying Party, by Parent under this Agreement (including the Contingent Amount, if any), or any combination of the foregoing. (c) Parent, Sub and the Securityholder Representative shall jointly direct the Escrow Agent in accordance with pursuant to the terms of the Escrow Agreement and this Agreement; provided, (i) on the date 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 is 15 months after the Closing Date, Parent to transfer the remaining Indemnity Escrow Fund (net of amounts contained in Claim Notices validly received by the Securityholder Representative), and (ii) upon the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion termination 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 not already transferred in accordance with Section 9.7(c)(i), to transfer the remainder of 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 Selling Shareholders, in each case, as instructed by the Securityholder Representative. Subject to any previous claims made directly against any of the Supporting Shareholders pursuant to Section 9.3, transfers of the remaining Indemnity Escrow Fund to the Company Members Selling Shareholders shall be made in accordance with their respective Pro Rata Percentagesinterests therein.

Indemnity Escrow Fund. The (a) Any distributions on the shares of Parent Common Stock other than regular cash dividends shall be deemed attached to the shares of Parent Common Stock to which they pertain. For applicable income Tax purposes, any shares of Parent Common Stock or securities distributed in respect thereof shall be treated as owned by, and any dividends, interest or other income earned on the Indemnity Escrow Fund shall be treated as income of, the Holder on whose behalf such securities or assets giving rise to such interest or other income, as the case may be, are being held. The Holders shall not have the right to sell, transfer, pledge, hypothecate or otherwise dispose of any cash or securities held and disbursed in the Indemnity Escrow Fund or any interest therein for so long as they are held in the Indemnity Escrow Fund. Each Holder shall be entitled to vote the shares of Parent Common Stock held in the Indemnity Escrow Fund for so long as they are held by the Escrow Agent Agent, pro rata based on the value of the shares of Parent Common Stock deposited in accordance the Indemnity Escrow Fund on behalf of such Holder. For purposes of determining the value of any shares of Parent Common Stock included in the Indemnity Escrow Fund and for purposes of determining the amount of any indemnity claim satisfied with shares of Parent Common Stock held in such Indemnity Escrow Fund, each such share of Parent Common Stock held in the Indemnity Escrow Fund shall be deemed to have a value equal to the Average Price. (b) 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), the obligation to pay the amount of indemnification owed hereunder shall be satisfied only from the Indemnity Escrow Fund, and any Losses in excess of the Indemnity Escrow Fund shall not be recoverable; provided, however, that the foregoing limitation shall not apply with respect to Losses that are also described in a subsection of Section 8.2 other than subsection (a), or with respect to Losses arising out of or relating to the inaccuracy or breach of (i) any Fundamental Representation or (ii) any claim of fraud, willful misconduct, intentional misrepresentation or willful breach. If a Parent Indemnified Party is entitled to be indemnified for Losses arising out of or relating to (x) any cause other than those set forth in Section 8.2(a), (y) the inaccuracy or breach of any Fundamental Representation or any representation or (z) any claim of fraud, willful misconduct, intentional misrepresentation or willful breach, Parent Indemnified Party shall first seek recovery against the Indemnity Escrow Fund, and then, if the Indemnity Escrow Fund at the time due and owing is insufficient, Parent Indemnified Party may proceed directly against the Holders to satisfy their indemnity obligations hereunder to the extent permitted pursuant to the terms of this Agreement, 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. (c) Upon the termination of the Indemnity Escrow Fund pursuant to 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 shall pay 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 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 Holders as instructed by the Holder Representative. Payment of such amounts to the Company Members Holders shall be made pro rata in accordance with their respective Pro Rata Percentages. (d) Notwithstanding the Holders’ several (and not joint) liability under Section 8.2, and a particular Holder’s maximum liability under Section 8.5(f), Parent Indemnified Parties may recover all Losses in respect of Section 8.2 from the Indemnity Escrow Fund without regard to such limitations applicable to recovery directly from Holders.

Indemnity Escrow Fund. The Indemnity (i) Seller agrees to indemnify and hold harmless Buyer, Parent and its Representatives and Affiliates (collectively, the “Buyer Indemnified Persons”) from against all claims, losses, liabilities, Benefits Liabilities, damages, deficiencies, costs, expenses (including attorneys’ fees and expenses of investigation) (hereinafter individually a “Loss” and collectively “Losses”) arising out of, or resulting from, or incurred with respect to, (A) any breach or inaccuracy of a representation or warranty of Seller contained in this Agreement, the Seller Disclosure Letter or any certificate or instrument delivered pursuant to this Agreement (for the purposes of this Section 8.2, the determination of any breach or inaccuracy of any representation or warranty shall be made without regard to any qualifications as to knowledge, materiality or Material Adverse Effect), (B) any failure by Seller to perform or comply with any covenant contained in this Agreement, or (C) any Excluded Liabilities. Except with respect to Losses related to Excluded Liabilities and Taxes, the Escrow Fund shall be held the sole source available to compensate the Buyer Indemnified Persons for such Losses. Buyer, Parent and disbursed by Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing, which if resolved at the Closing would have led to a reduction in the aggregate Purchase Price. (ii) As soon as practicable after the Closing, the Escrow Agent in accordance Shares will be deposited with Xxxxx Fargo Corporate Trust Services, as escrow agent (the terms of the “Escrow Agreement and this Agreement; providedAgent”), that in the event of conflict between the Escrow Agreement and this Agreementwithout any act by Seller, this Agreement shall prevail as among the parties such deposit to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim of (the “Escrow Fund”) to be governed by the terms set forth herein. (iii) At such time as Officer’s Certificates with respect to Losses have been delivered, Parent Indemnified Parties pursuant to this Article IX, and Buyer shall be used, if the Parent Indemnified Parties become entitled to indemnification from for all Losses. (iv) The Escrow Fund shall be available to compensate the Key Buyer Indemnified Persons and Company Members pursuant for Losses. Except with respect to Losses related to Excluded Liabilities, the remedies provided in this Article IXVIII shall be the exclusive remedies available to Buyer, solely Parent or the other Buyer Indemnified Persons. Notwithstanding the foregoing, any Losses related to promptly Excluded Liabilities during the Escrow Period (as defined below) shall be first satisfied through the Escrow Fund. To the extent the Escrow Fund is insufficient or no longer available to satisfy Losses related to Excluded Liabilities, Buyer, Parent or the amount owed other Buyer Indemnified Parties shall be entitled to offset any such unsatisfied Losses or payable portion thereof against the Earn-Out Shares or the Parent Guarantee Shares or to seek and obtain recourse against Seller or any successor thereto (including the Trust) through any other legal remedies for any such unsatisfied Losses. Notwithstanding the foregoing or anything to the Parent Indemnified Parties contrary set forth herein, nothing in this Agreement shall limit the liability (i) of Seller for any breach of any representation, warranty or covenant contained herein if the Closing shall not occur, (ii) of Seller for any Losses arising out of fraud or intentional misrepresentation by Seller, or (iii) of any shareholder of Seller in connection therewith. Promptly following the first (1st) anniversary with any breach by such shareholder of the Closing Date, Parent Voting Agreement between such shareholder 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 PercentagesBuyer.

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 (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 Acquirer, and the Contributing Equityholders shall be entitled to exercise voting rights and to receive dividends with respect to such shares if and to the extent declared by the board of directors of Acquirer (other than non-taxable stock dividends, which shall be withheld by Acquirer and included as part of the Parent Indemnified Parties pursuant Indemnity Escrow Fund). The Contributing Equityholders shall not receive interest or other earnings on the shares of Acquirer Common Stock (other than as set forth in the immediately preceding sentence) in the Indemnity Escrow Fund. Neither the Indemnity Escrow Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to this Article IXany Encumbrance, and sold, assigned or transferred by any Contributing Equityholder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Contributing Equityholder, in each case prior to the distribution of the Indemnity Escrow Fund to any Contributing Equityholder in accordance with Section 8.1(b), except that each Contributing Equityholder shall be used, if the Parent Indemnified Parties become entitled to indemnification from assign such Company Stockholder’s rights to such Contributing Equityholder’s Pro Rata Share of the Key Persons and Company Members pursuant to this Article IXIndemnity Escrow Fund by will, solely to promptly satisfy by the amount owed laws of intestacy or payable to the Parent Indemnified Parties in connection therewith. Promptly by other operation of law. (b) Within five (5) Business Days following the first (1st) anniversary of the Closing Escrow Release Date, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent will distribute to disburse each Contributing Equityholder such Contributing Equityholder’s Pro Rata Share of the remaining Indemnity Escrow Fund less the portion of the Indemnity Escrow Fund equal to the aggregate maximum amount of all unsatisfied or disputed claims for indemnification specified in any remaining Claim Certificate delivered to the Stockholders’ Agent prior to the Escrow Release Date in accordance with this Article 8. Any portion of the Indemnity Escrow Fund held following the Escrow Release Date with respect to pending but unresolved claims for indemnification that is not awarded to Acquirer upon the resolution of such claims shall be distributed to the Contributing Equityholders within five (5) Business Days following resolution of such claims and in accordance with each such Contributing Equityholder’s Pro Rata Share of such 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 Closing, the Buyer shall deposit, or cause to be deposited, the Indemnity Escrow Amount with the Escrow Agent pursuant to Section 1.04(e) (the aggregate amount of cash held by the Escrow Agent pursuant to this Section 9.03 and the Escrow Agreement, from time to time, the “Indemnity Escrow Fund”), which Indemnity Escrow Fund shall be held and disbursed by the Escrow Agent in accordance pursuant to this Agreement and the Escrow Agreement. Subject to Section 9.04, the Indemnity Escrow Fund shall constitute partial security for the benefit of the Buyer (on behalf of itself or any other Buyer Indemnitee) with respect to any Adverse Consequences pursuant to the indemnification obligations of the Seller under this Article IX. (b) Within five (5) Business Days after the Non-Fundamental Limitation Date, the Escrow Agent shall, pursuant to 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 release to the parties to this Agreement. The Seller (i) all 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 Funds in the Indemnity Escrow Fund exceeds Account minus (ii) the aggregate amount for which claims for indemnification were made by Buyer against the Indemnity Escrow Funds in connection with this ARTICLE IX prior to the Non-Fundamental Limitation Date and not yet resolved (the “Pending Claim Amount”). Furthermore, following the Non-Fundamental Limitation Date, within two (2) Business Days after final determination (in accordance with this Agreement) that all or any portion of all unresolved the Pending ClaimsClaim Amount is not owed to Buyer hereunder, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release such excess (or the total remaining amountshall, if applicable) pursuant to the Exchange Agent for distribution terms of the Escrow Agreement, release to Seller, such portion of the Company Members in accordance with their respective Pro Rata PercentagesPending Claim Amounts.

Indemnity Escrow Fund. (a) The Indemnity Escrow Fund shall be held until the eighteen month anniversary of the Closing Date and disbursed by the Escrow Agent in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event provisions of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this AgreementSection 9.4. The Indemnity Escrow Fund Fund, [***], shall constitute an escrow fund securing any be available to compensate the Parent Indemnitees pursuant to the indemnification claim obligations of the Indemnitors; provided that [***]. *** CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION (b) Except as set forth in Section 6.5 the Company Securityholders shall not have any right of indemnification or contribution from Parent Indemnified Parties or the Surviving Corporation with respect to any Loss claimed by any Parent Indemnitee after the Effective Time. If the Surviving Corporation suffers, incurs or otherwise becomes subject to any Losses as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or agreement, then (without limiting any of the rights of the Surviving Corporation as a Parent Indemnitee) Parent shall also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to have incurred Losses as a result of and in connection with such inaccuracy or breach. (c) Except as provided in Section 9.3(d), the Parent Indemnitees’ rights pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become entitled their recourse 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 FundFund [***], less an amount equal shall be the sole and exclusive recourse and remedies for Losses available to Parent Indemnitees for any breach of any representation, warranty, covenant or agreement contained in this Agreement or certificate or other document furnished or to be furnished to Parent in connection with the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent transactions contemplated hereby; provided that has not been finally resolved pursuant to [***]. (d) Nothing contained in this Article IX shall be deemed to limit or restrict in any manner any rights or remedies which the Parent Indemnitees have, or might have, at Law, in equity or otherwise, based on (each, a “Pending Claim”). Upon the resolution of any Pending Claimi) fraud (or, to the extent that amount remaining California law is applicable, actual fraud with intent to deceive, or to induce a party to enter into this Agreement) in connection with the Indemnity Escrow Fund exceeds the amount transactions contemplated hereby or (ii) any breach by a Company Securityholder of all unresolved Pending Claims, if any, Parent any representation and the Equityholders’ Representative will jointly instruct the Escrow Agent to release warranty and covenant or agreement contained in any other agreement entered into by such excess (Company Securityholder with or the total remaining amount, if applicable) to benefit of Parent in connection with the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata PercentagesMerger.

Indemnity Escrow Fund. (i) The Indemnity Company Stockholders, jointly and severally, agree to indemnify and hold Parent and its Representatives and Affiliates (including the Company) (collectively, the "Indemnified Persons") from and harmless against all claims, losses, liabilities, damages, deficiencies, costs, expenses (including reasonable attorneys' fees and expenses of investigation) and diminution in value (hereinafter individually a "Loss" and collectively "Losses") incurred by the Indemnified Persons directly or indirectly as a result of (A) any inaccuracy or breach of a representation or warranty of the Company contained in this Agreement, or (B) any failure by the Company to perform or comply with any covenant contained in this Agreement. The Escrow Fund shall be held available to compensate Parent and disbursed its affiliates for such Losses. Company Stockholders shall not have any right of contribution from Parent with respect to any Loss claimed by Parent. Parent and the Company and each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. (ii) As soon as practicable after the Effective Time, shares of Parent Common Stock which comprise the Escrow Amount, without any act of any Company Stockholder, will be deposited with ChaseMellon Shareholder Services, L.L.C., as Escrow Agent in accordance with (the terms of the "Escrow Agreement and this Agreement; providedAgent"), that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties such deposit to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim (the "Escrow Fund") to be governed by the terms set forth herein. The portion of the Parent Indemnified Parties pursuant to this Article IX, and Escrow Amount contributed on behalf of each Company Stockholder shall be usedin proportion to the aggregate Merger Consideration which such holder would otherwise be entitled under Section 3.1. The Escrow Agent shall not be responsible for confirming that the shares contributed to the Escrow Fund comprise the Escrow Amount or that the portion contributed on behalf of each Company Stockholder is in the proper proportion, if which determination shall be made by Parent. (iii) Notwithstanding anything contained herein to the contrary, the Company Stockholders shall not have any liability or obligation to indemnify Parent Indemnified Parties become or Sub for any Losses unless and until Officer's Certificates (as hereinafter defined) shall have been delivered with respect to Losses which equal or exceed $25,000 in the aggregate for all Losses (the "Basket Amount"). At such time as Officer's Certificates with respect to Losses which meet the foregoing thresholds have been delivered, Parent and Sub shall be entitled to indemnification from for all Losses, including 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 PercentagesBasket Amount.

Indemnity Escrow Fund. (a) The Indemnity Escrow Fund shall be available to compensate any Buyer Indemnified Person pursuant to the indemnification obligations of the Sellers and shall be held and disbursed by the Escrow Agent Agent(s) or Key Holders, as applicable, mutually appointed by the Parties on or before the Closing Date. Subject to and in accordance with the terms Escrow Agreement, the amount of indemnifiable Losses shall be released to Buyer from the Indemnity Escrow Agreement Fund. (b) Subject to the other limitations set forth in Section 7.1, the Buyer Indemnified Persons’ right to indemnification pursuant to Section 7.1(a)(i) (subject to the other limitations in this Article 7) on account of indemnifiable Losses shall be satisfied in the following order: (A) first, such Losses will be satisfied by recovery from the Indemnity Escrow Fund and this Agreement(B) thereafter, be satisfied by recovery from the Founder Sellers in accordance with their respective Indemnity Pro Rata Shares; provided, however, that Buyer Indemnified Persons’ sole recourse under Section 7.1(a)(i) (other than with respect to Fundamental Representations) shall be limited to the Indemnity Escrow Fund. (c) Any amounts remaining 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 Account 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 Date, Parent Date shall be released to the Sellers. Each of the Buyer and the Equityholders’ Representative will jointly instruct Sellers shall take all actions promptly that are necessary to authorize 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 distributions required pursuant to this Article IX (each, a “Pending Claim”)Section 7.2. Upon Notwithstanding the resolution of any Pending Claimforegoing, to the extent that the Buyer reasonably determines that the Compliance Amount is or will be insufficient for the purpose of covering the Filing Fees for a period of two (2) years from the Closing Date, the Buyer shall provide a written summary of the projected deficit and the Sellers’ Representative will work with the Buyer in good faith to determine an amount remaining in of the Indemnity Escrow Fund exceeds which will be held back and added to the Compliance Amount for the purposes of covering any such Compliance Amount deficit. In no event will the amount of all unresolved Pending Claims, if any, Parent and held back from the Equityholders’ Representative will jointly instruct the Indemnity Escrow Agent Account to release such excess cover any Compliance Amount deficit exceed Five Hundred Thousand Dollars (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$500,000).

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 (a) Any indemnification to be provided by the Significant Stockholders to a Purchaser Indemnified Party under Section 9.2(a) shall be by recourse first to, and payable from the Indemnity Escrow Fund pursuant to the terms of the Indemnity Escrow Agreement, and then, subject to the limitations on aggregate liability for such claim, by cash payment from the Significant Stockholders; provided, however, that if the Purchaser Indemnified Parties are seeking indemnification based upon a breach of the Fundamental Representations and Warranties set forth in Sections 3.1(a), 3.1(c), 3.2, 3.3 or 3.21, the Purchaser Indemnified Parties shall have the right to elect to proceed simultaneously against the Indemnity Escrow Fund and any one or more Significant Stockholders directly, subject to the limitations set forth in this Agreement. 71 (b) Any indemnification to be provided by a Stockholder to a Purchaser Indemnified Party under Section 9.2(b) shall be held and disbursed by recourse directly against such Stockholder; provided, however, that (i) in the case of any claim against a Significant Stockholder under Section 9.2(b), the Purchaser Indemnified Party shall be entitled to assert a claim against such Significant Stockholder's Pro Rata Portion of the Indemnity Escrow Fund pursuant to the terms of the Indemnity Escrow Agreement, but no monies shall be paid in respect of such claim by the Indemnity Escrow Agent other than out of funds that would otherwise be released to such Significant Stockholder 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 PercentagesAgreement.

Indemnity Escrow Fund. (i) The Indemnity Escrow Fund shall be held available to satisfy any Claims of the Indemnified Purchaser Parties arising or resulting from (i) any breach of any representation or warranty to the extent such Losses (A) are in excess of the Indemnity Threshold and disbursed the Indemnity Deductible, if applicable, and (B) are not otherwise covered by the Escrow Agent R&W Insurance Policy, (ii) any breach of any covenant or agreement in accordance with this Agreement or any other Transaction Document, and (iii) any Retained Liability. Except as set forth in Section 15.8(c)(ii), the terms balance 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 be released to Sellers 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 eighteen (1st18) month anniversary of the Closing Date; provided, Parent however, if there are any pending Claims as of such release date that may be satisfied from the Indemnity Escrow Fund, the amount of any such Claims shall be retained in the Indemnity Escrow Fund until such time as such Claims are resolved. (ii) Until such time as Sellers have delivered evidence satisfactory to Purchaser of the full satisfaction of, and complete release with respect to, each Retained Liability described on Schedule 15.8(c)(ii) (each a “Specified Retained Liability” and, collectively, the Equityholders’ Representative will jointly instruct “Specified Retained Liabilities”), the amount of the Indemnity Escrow Agent Fund allocated to disburse any remaining such Specified Retained Liability (as set forth on Schedule 15.8(c)(ii)) shall continue to be held in the Indemnity Escrow Fund. Any portion of the Indemnity Escrow Fund, less an amount equal Fund allocated 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 Specified Retained Liabilities that has not been finally resolved pursuant released to this Article IX Sellers on the three (each3) year anniversary of the Closing Date shall be disbursed to and retained by Purchaser. For the avoidance of doubt, a “Pending Claim”). Upon the resolution of any Pending Claim, Purchaser shall be entitled to the extent that amount remaining in recover from the Indemnity Escrow Fund exceeds any Losses arising or resulting from any Specified Retained Liability, and the amount of all unresolved Pending Claimsthe Indemnity Escrow Fund allocated to a Specified Retained Liability shall be reduced by the amount of Losses incurred by the Indemnified Purchaser Parties with respect to such Specified Retained Liability before any amount is disbursed to Sellers pursuant to this Section 15.8(c)(ii). Notwithstanding the foregoing, if any, Parent and the Equityholders’ Representative will jointly instruct Parties agree that neither the Indemnity Escrow Agent to release such excess (or the total remaining amount, if applicable) Fund nor any portion thereof allocated to the Exchange Agent for distribution Specified Retained Liabilities shall serve as a cap on Sellers’ exposure with respect to the Company Members in accordance with their respective Pro Rata Percentagessuch Specified Retained Liabilities.

Indemnity Escrow Fund. (a) The Indemnity Escrow Fund shall be held until the eighteen month anniversary of the Closing Date and disbursed by the Escrow Agent in accordance with the terms of the Escrow Agreement and this Agreement; provided, that in the event provisions of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties to this AgreementSection 9.4. The Indemnity Escrow Fund Fund, [***], shall constitute an escrow fund securing any be available to compensate the Parent Indemnitees pursuant to the indemnification claim obligations of the Indemnitors; provided that [***]. (b) Except as set forth in Section 6.5 the Company Securityholders shall not have any right of indemnification or contribution from Parent Indemnified Parties or the Surviving Corporation with respect to any Loss claimed by any Parent Indemnitee after the Effective Time. If the Surviving Corporation suffers, incurs or otherwise becomes subject to any Losses as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or agreement, then (without limiting any of the rights of the Surviving Corporation as a Parent Indemnitee) Parent shall also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to have incurred Losses as a result of and in connection with such inaccuracy or breach. (c) Except as provided in Section 9.3(d), the Parent Indemnitees’ rights pursuant to this Article IX, and shall be used, if the Parent Indemnified Parties become entitled their recourse 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 FundFund [***], less an amount equal shall be the sole and exclusive recourse and remedies for Losses available to Parent Indemnitees for any breach of any representation, warranty, covenant or agreement contained in this Agreement or certificate or other document furnished or to be furnished to Parent in connection with the Losses claimed by the Parent Indemnified Parties pursuant to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent transactions contemplated hereby; provided that has not been finally resolved pursuant to [***]. (d) Nothing contained in this Article IX shall be deemed to limit or restrict in any manner any rights or remedies which the Parent Indemnitees have, or might have, at Law, in equity or otherwise, based on (each, a “Pending Claim”). Upon the resolution of any Pending Claimi) fraud (or, to the extent that amount remaining California law is applicable, actual fraud with intent to deceive, or to induce a party to enter into this Agreement) in connection with the Indemnity Escrow Fund exceeds the amount transactions contemplated hereby or (ii) any breach by a Company Securityholder of all unresolved Pending Claims, if any, Parent any representation and the Equityholders’ Representative will jointly instruct the Escrow Agent to release warranty and covenant or agreement contained in any other agreement entered into by such excess (Company Securityholder with or the total remaining amount, if applicable) to benefit of Parent in connection with the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata PercentagesMerger.

Indemnity Escrow Fund. The Indemnity (i) Seller agrees to indemnify and hold harmless Buyer, Parent and its Representatives and Affiliates (collectively, the "Buyer Indemnified Persons") from against all claims, losses, liabilities, damages, deficiencies, costs, expenses (including reasonable attorneys' fees and expenses of investigation) (hereinafter individually a "Loss" and collectively "Losses") arising out of, or resulting from, or incurred with respect to, (A) any breach or inaccuracy of a representation or warranty of Seller contained in this Agreement, the Seller Disclosure Letter or any certificate or instrument delivered pursuant to this Agreement (for the purposes of this Section 8.2, the determination of any breach or inaccuracy of any representation or warranty shall be made without regard to any qualifications as to knowledge, materiality or Material Adverse Effect), (B) any failure by Seller to perform or comply with any covenant contained in this Agreement, or (C) any Excluded Liabilities. Except as to Excluded Liabilities, the Escrow Fund shall be held the sole source available to compensate the Buyer Indemnified Persons for such Losses. Buyer, Parent and disbursed by Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing, which if resolved at the Closing would have led to a reduction in the aggregate Purchase Price. (ii) As soon as practicable after the Closing, the Escrow Shares will be deposited with Union Bank of California, as Escrow Agent in accordance with (the terms of the Escrow Agreement and this Agreement; provided"ESCROW AGENT"), that in the event of conflict between the Escrow Agreement and this Agreementwithout any act by Seller, this Agreement shall prevail as among the parties such deposit to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing (the "ESCROW FUND") to be governed by the terms set forth herein. (iii) Seller shall not have any indemnification claim of liability or obligation to indemnify any Buyer Indemnified Person for any Losses unless and until Officer's Certificates (as hereinafter defined) shall have been delivered with respect to Losses which equal or exceed $250,000 in the aggregate for all Losses (the "BASKET AMOUNT"). At such time as Officer's Certificates with respect to Losses which surpass the foregoing thresholds have been delivered, Parent Indemnified Parties pursuant to this Article IX, and Buyer shall be used, if the Parent Indemnified Parties become entitled to indemnification from for all Losses, including the Key Persons and Company Members pursuant to this Article IX, solely to promptly satisfy Basket Amount. Notwithstanding the amount owed or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Dateforegoing, Parent and Buyer shall be entitled to indemnification without regard to the Equityholders’ Representative will jointly instruct Basket Amount with respect to any Losses with respect to Excluded Liabilities and such Losses shall not be included in the calculation of the Basket Amount. (iv) The Escrow Fund shall be available to compensate the Buyer Indemnified Persons for Losses. Except with respect to Losses related to Excluded Liabilities, the remedies provided in this Article VIII shall be the exclusive remedies available to Buyer, Parent or the other Buyer Indemnified Persons. Notwithstanding the foregoing, any Losses incurred related to Excluded Liabilities during the Escrow Agent to disburse any remaining portion of Period (as defined below) shall be first satisfied through the Indemnity Escrow Fund. Furthermore, less an amount equal notwithstanding the foregoing or anything to the Losses claimed by contrary set forth herein, nothing in this Agreement shall limit the Parent Indemnified Parties pursuant to liability (i) of Seller for 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 breach of any Pending Claimrepresentation, warranty or covenant contained herein if the Closing shall not occur, to the extent that amount remaining such breach (or breaches), individually or in the Indemnity Escrow Fund exceeds aggregate, amount to a failure to fulfill a condition of closing pursuant to Section 7.1 hereof, (ii) of Seller for any Losses arising out of fraud or intentional misrepresentation by Seller, or (iii) of any stockholder of Seller in connection with any breach by such stockholder of the amount of all unresolved Pending Claims, if any, Parent Voting Agreement between such stockholder 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 PercentagesBuyer.

Indemnity Escrow Fund. The (a) At the Closing, Buyer shall deposit with the Escrow Agent in accordance with Section 2.6 the Indemnity Escrow Amount (such funds, as held by the Escrow Agent pursuant to the Indemnity Escrow Agreement, including interest income thereon, the “Indemnity Escrow Fund”) and the Indemnity Escrow Fund shall be held and disbursed by the Escrow Agent distributed in accordance with the terms of this Section 10.1 and the Indemnity 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 available as a nonexclusive source of funds to the Buyer to satisfy any indemnification claim by Buyer for Buyer Damages for which the Buyer is entitled pursuant to Article IX; provided, that the Buyer Indemnitees shall first seek recovery of any Buyer Damages from the Indemnity Escrow Agreement, to the extent funds are available therein. The Indemnity Escrow Fund shall not represent a cap on, or otherwise reduce, limit or restrict the liabilities or obligations of the Parent Indemnified Parties Sellers and Members with respect to any Buyer Damages under Article IX. (b) The Indemnity Escrow Fund shall be maintained in the escrow account established pursuant to the Indemnity Escrow Agreement. The Indemnity Escrow Fund shall be maintained in the escrow account until the date which is two (2) years following the Closing Date (the “Indemnity Escrow Period”). Upon expiration of the Indemnity Escrow Period, and subject to the terms of 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 X and the Equityholders’ Representative will jointly instruct Indemnity Escrow Agreement, the Escrow Agent shall deliver or cause to disburse any remaining portion be delivered to the Sellers, or their designee, the balance, if any, of the Indemnity Escrow Fund. If, 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 upon expiration of any Pending Claim, to the extent that amount remaining in the Indemnity Escrow Fund exceeds Period, any Buyer Indemnitees shall have asserted a claim for indemnification in accordance with Article IX and such claim is pending or unresolved at the amount time of all unresolved Pending Claimsthe expiration of the Indemnity Escrow Period, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent shall retain in escrow an amount estimated to release equal the value of the asserted claim (the “Retained Indemnity Escrow Amount”) until Final Resolution of such excess (or the total remaining amount, if applicable) to the Exchange Agent for distribution to the Company Members matter and such Retained Indemnity Escrow Amount may be distributed in accordance with their respective Pro Rata Percentagesthe terms and provisions of this Article X and the Indemnity Escrow Agreement.

Indemnity Escrow Fund. The (a) During the Interim Period, Micron and the Sellers shall negotiate in good faith a form of Escrow Agreement containing terms and conditions that are consistent with those applicable to the Indemnity Escrow Fund and the Micron Escrow Shares set forth in this Agreement and such other terms and conditions that are customary for transactions of this type. From and after the Closing, the Sellers agree that, subject to the other provisions of this Article X and the terms and conditions of the Escrow Agreement, the Indemnity Escrow Fund shall be available as partial security to satisfy the Sellers’ obligations to indemnify and hold harmless the Micron Indemnitees from and against any and all Indemnifiable Losses. Sellers’ interests in the Indemnity Escrow Fund shall be non-transferable. 4917039.19 (b) Each Seller shall have voting rights with respect to the Micron Escrow Shares held in the Indemnity Escrow Fund by or on behalf of such Seller (and disbursed any additional shares of Micron Common Stock as may be issued after the Closing with respect to such Micron Escrow Shares upon any stock split, dividend or recapitalization effected by Micron after the Closing), subject to the restrictions on voting set forth in the Stockholder Rights and Restrictions Agreement. Each Seller shall have the right to receive any cash dividends or distributions made with respect to the Micron Escrow Shares held in the Indemnity Escrow Fund, but any additional shares of Micron Common Stock as may be issued after the Closing with respect to such Micron Escrow Shares upon any stock split, stock dividend or recapitalization effected by Micron after the Closing shall be retained in the Indemnity Escrow Fund, until disbursement in accordance with this Agreement and the Escrow Agreement. Following the expiration of the Lock-Up Period (in the case of clause (i)) or on the Escrow Substitution Date (in the case of clause (ii)), (i) any Seller may direct the Escrow Agent to sell, as agent and trustee for the requesting Seller, all or any portion of such Seller’s remaining Micron Escrow Shares in the Indemnity Escrow Fund and/or (ii) any Seller that has deposited into the Indemnity Escrow Fund any Excess Escrow Shares (as defined in Schedule 2.2(a)) shall direct the Escrow Agent to release from the Indemnity Escrow Fund and deliver to such Seller such Seller’s Excess Escrow Shares, and in exchange therefor, such Seller shall deposit into the Indemnity Escrow Fund an amount in cash equal to the average of the twenty (20) VWAP Prices of Micron Common Stock for the twenty (20) consecutive trading day period ending on the second trading day immediately prior to the Escrow Substitution Date. Until the Escrow Period expires, the Escrow Agent will (x) in the case of any sale described in clause (i) above, hold the proceeds of such sale (net of any sales commissions and other reasonable expenses of the Escrow Agent as set forth in the Escrow Agreement) and (y) in the case of any release and delivery of Excess Escrow Shares described in clause (ii) above, hold the deposited cash, in each case, in accordance with the Escrow Agreement. For United States federal income Tax purposes, the Sellers on whose behalf the Micron Escrow Shares are held in the Indemnity Escrow Fund will be treated as the owners of such shares unless and until such shares are returned to Micron. (c) Subject to the other provisions of this Article X and the terms and conditions of the Escrow Agreement, the Indemnity Escrow Fund shall remain in existence until the Escrow Release Date; provided, however, that should one or more claims for indemnification set forth in a Claim Notice delivered to the Sellers prior to the Escrow Release Date in accordance with Section 10.5(a) remain unresolved or unsatisfied as of the Escrow Release Date, the Indemnity Escrow Fund shall not terminate with respect to that number of Micron Escrow Shares with a value (determined in accordance with the provisions of the Escrow Agreement) equal to the amount determined in good faith by Micron to be reasonably necessary to satisfy such unresolved or unsatisfied claims until each such claim shall have been finally resolved and satisfied. All distributions from the Indemnity Escrow Fund to the Sellers and/or to Micron Indemnitees shall be made in accordance with the terms of the Escrow Agreement Agreement. (d) For purposes of this Article X 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 (i) Micron and each FP Seller agree that (A) any notice provided to this Agreement. The Indemnity Escrow Fund or from one FP Seller shall constitute an escrow fund securing notice to or from the other FP Seller, and (B) any indemnification claim of the Parent Indemnified Parties pursuant to this Article IXapproval, consent, waiver, authorization or instruction 4917039.19 given by one FP Seller shall be deemed given by, and shall be usedbinding on, if the Parent Indemnified Parties become entitled other FP Seller, and (ii) Micron and each Intel Seller agree that (A) any notice provided to indemnification or from the Key Persons Intel shall constitute notice to or from both Intel Sellers, and Company Members pursuant to this Article IX(B) any approval, solely to promptly satisfy the amount owed consent, waiver, authorization or payable to the Parent Indemnified Parties in connection therewith. Promptly following the first (1st) anniversary of the Closing Dateinstruction given by Intel shall be deemed given by, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fundshall be binding on, 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 Percentagesboth Intel Sellers.

Indemnity Escrow Fund. The Indemnity (i) Seller shall indemnify and hold harmless Buyer and its Representatives and Affiliates (collectively, the “Buyer Indemnified Persons”) from and against all claims, losses, Liabilities, damages, deficiencies, costs, expenses (including reasonable attorneys’ fees and expenses of investigation) (hereinafter individually a “Loss” and collectively “Losses”) arising out of, or resulting from, or incurred with respect to, (A) any breach of a representation or warranty of Seller contained in this Agreement, the Disclosure Schedule or any certificate or instrument delivered pursuant to this Agreement, or any Ancillary Agreement to which Seller is a party, and any breach of a representation or warranty of Seller (or any of Seller’s Affiliates) pursuant to the Noncompetition Agreement, (B) any failure by Seller to perform or comply with any covenant contained in this Agreement or any other Ancillary Agreement, or any breach by Seller or any of it is Affiliates of the Noncompetition Agreement, (C) any Liabilities of Seller, (D) any expenses incurred by Company as set forth and subject to Section 9.12 herein. (ii) Except with respect to Losses related or resulting from fraud or willful misrepresentation, or for violations of the representations set forth in Section 3.1 (Ownership of Shares), Section 3.3 (Authority), Section 3.7 (Capitalization), Section 3.14 (Tax Matters), Section 3.15 (Title to Assets; Absence of Liens and Encumbrances), and Section 3.17 (Contracts) (the foregoing representations being hereinafter referred to as “Carve-Out Representations”) the maximum recovery for any and all indemnification claims of Buyer or the other Buyer Indemnified Persons pursuant to this Section 8.2 shall be limited to thirty percent (30%) of the Purchase Price. (iii) Except with respect to Losses related or resulting from fraud or willful misrepresentation, the maximum recovery for any and all indemnification claims of Buyer or the other Buyer Indemnified Persons pursuant to this Section 8.2 with respect to the Carve-Out Representations shall be limited to the Purchase Price. (iv) Except with respect to Losses related or resulting from fraud or willful misrepresentation, the aggregate maximum recovery for any and all indemnification claims of Buyer or the other Buyer Indemnified Persons pursuant to this Section 8.2, whether in relation to Carve-Out Representations or otherwise, shall be limited to the Purchase Price (v) As soon as practicable after the Closing, the Escrow Fund shall will be held deposited with the Escrow Agent, without any act by Seller, to be governed by the terms set forth herein and disbursed by any applicable escrow agreement. Promptly upon receipt of the Escrow Fund, the Escrow Agent will convert the Escrow Fund into Norwegian Krone and will thereafter maintain the Escrow Fund in accordance Norwegian Krone. (vi) Seller shall have no Liability or obligation to indemnify any Buyer Indemnified Person for any Losses pursuant to Sections 8.2(a)(i)(A) or (B) unless and until an Officer’s Certificate on behalf of Buyer shall have been delivered with respect to Losses which equal or exceed $350,000 in the terms aggregate for all Losses (the “Basket Amount”) each Officer’s Certificate shall be for a loss of no less no less than $25,000, save that groups of related losses may be aggregated up to the $ 25,000 threshold. At such time as Officer’s Certificates with respect to Losses which surpass the foregoing Basket Amount have been delivered, the Buyer Indemnified Persons shall be entitled to indemnification for all Losses, including the Basket Amount, and thereafter Buyer shall deliver any Officer’s Certificate claiming individual Losses of no less than $25,000, save that groups of related losses may be aggregated up to the $ 25,000 threshold. (vii) The Seller shall have no liability or obligation to indemnify any Buyer Indemnified Person for any Losses pursuant to Sections 8.2(a)(i)(A) or (B) in respect of matters that objectively were properly disclosed by the Seller in writing in the Due Diligence as evidenced by Section 1.1 (h) of the Escrow Agreement and this Agreement; Disclosure Schedule. (viii) Further, the Seller shall have no liability or obligation to indemnify any Buyer Indemnified Person for any Losses pursuant to Sections 8.2(a)(i)(A) or (B) if an Officer’s Certificate on behalf of Buyer is delivered later than 2400 (CET) on the date falling twelve (12) months after the Closing Date, provided, however, that in the event of conflict between fraud or willful breach of a representation or warranty, such representation or warranty shall survive indefinitely; provided, further, that the representations and warranties contained in Section 3.1 (Ownership of Shares), Section 3.3 (Authority), Section 3.7 (Capitalization) and Section 3.15 (a) hereof shall survive until the fifth anniversary of the Closing; and provided further that the representations and warranties contained in 3.14 (Tax Matters) shall survive until the termination of the applicable statute of limitations. (ix) The Escrow Fund shall be available to compensate the Buyer Indemnified Persons for Losses and any Losses incurred during the Escrow Agreement Period shall be first satisfied through the Escrow Fund and this Agreementthereafter, subject to the limits set forth herein, by looking to Seller. Furthermore, notwithstanding the foregoing or anything to the contrary set forth herein, nothing in this Agreement shall prevail as among limit the parties to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing Liability (i) of Seller or any indemnification claim other Person for any Losses arising out of the Parent Indemnified Parties pursuant to this Article IXfraud or willful breach of a representation or warranty, 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 (ii) of any Person in connection therewith. Promptly following the first (1st) anniversary with any breach by such Person 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 Employment Agreement 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 PercentagesNoncompetition Addendum.

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 (i) If the Buyer intends to assert a claim against the Indemnity Escrow Fund Deposit for Losses pursuant to Articles XI or XII of the Stock Purchase Agreement, the Buyer shall be held deliver a Claims Notice in accordance with Sections 11.4 of the Stock Purchase Agreement to the Escrow Agent and disbursed the Sellers’ Representative prior to the termination of the applicable survival period for such claim. (ii) If, within thirty (30) calendar days after receipt 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 EquityholdersSellers’ Representative will jointly instruct of a Claims Notice (the “Objection Period”), the Escrow Agent has not received a written statement from the Sellers’ Representative (the “Objection Notice”) disputing the Buyer’s right to disburse any remaining portion indemnification and/or the amount of indemnification sought in such notice, the Escrow Agent shall, within five (5) Business Days following the expiration of the Objection Period, pay to the Buyer out of the Indemnity Escrow Fund, less Fund in the form of Buyer Shares valued at the Agreed Upon Per Share Value an amount equal to the Losses claimed lesser of (x) the amount of the available remaining Indemnity Escrow Deposit and (y) the amount specified in the Claims Notice. (iii) If, during the Objection Period, the Escrow Agent receives an Objection Notice, the Escrow Agent shall (i) promptly forward a copy of that statement to the Buyer, (ii) if applicable, pay the Buyer out of the remaining Indemnity Escrow Deposit in the form of Buyer Shares valued at the Agreed Upon Per Share Value any amount that is specifically set forth in the Objection Notice not to be in dispute and (iii) continue to hold in escrow the amount in dispute, until receipt of (A) a joint statement signed by the Parent Indemnified Parties pursuant Sellers’ Representative and the Buyer directing the disposition of all or part of the remaining Indemnity Escrow Deposit or (B) a certified copy of a final, non- appealable order of a court of competent jurisdiction of the disputed matters set forth in the Objection Notice ordering the Escrow Agent to any Indemnification Claim Notice or Third Party Indemnification Claim Notice timely delivered by Parent that has not been finally resolved pursuant dispose of the amount in dispute (but in no event to this Article IX (each, a “Pending Claim”exceed the amount of the remaining Indemnity Escrow Deposit). Upon the resolution receipt of any Pending Claimsuch statement or court determination, the Escrow Agent shall promptly comply with its terms. (iv) The Indemnity Escrow Deposit shall only be available (x) in the event the Purchase Price Escrow Deposit is insufficient to pay the Buyer the amount set forth in the Purchase Price Disposition Notice, (y) to pay for Losses incurred by a Buyer Indemnitee for Taxes under Article XII of the Stock Purchase Agreement and (z) to pay for Losses incurred by a Buyer Indemnitee under Article XI of the Stock Purchase Agreement (such Losses referred to in clause (z) above, “Indemnification Losses”). (v) The Buyer and the Sellers’ Representative acknowledge and agree that the Indemnity Escrow Deposit shall be the Buyer’s sole and exclusive remedy for any Claims under Section 11.2(a) of the Stock Purchase Agreement (other than Taxes or Unrestricted Claims). In the event the number of Buyer Shares in the Indemnity Escrow Deposit is insufficient to pay the amount of the Purchase Price Adjustment or any Claim for which the Indemnity Escrow Deposit is the sole and exclusive remedy in full, the Buyer shall not be entitled to collect any amounts in excess of the then-available Indemnity Escrow Deposit and no Seller or other Person shall have any liability for any shortfall, except to the extent that amount the Claims relate to Taxes or Unrestricted Claims, in which event no such limitation shall be applicable. (vi) Except as otherwise directed by the Sellers’ Representative, not later than ten (10) calendar days after the end of each calendar quarter during the term of this Agreement until such time as the Indemnity Escrow Deposit is fully depleted, all accrued and unpaid Indemnity Interest shall be released by the Escrow Agent to the Sellers’ Representative for the benefit of the Sellers based on each Seller’s Seller Payment Transaction Percentage. (vii) Except as otherwise directed by the Sellers’ Representative, on the date which is fifteen (15) months after the Closing Date, the Escrow Agent shall release all Buyer Shares remaining in the Indemnity Escrow Fund exceeds (including any remaining accrued and unpaid Indemnity Interest) to the amount of all unresolved Pending Claims, if any, Parent and the EquityholdersSellers’ Representative will jointly instruct for the benefit of the Sellers based on each Seller’s Indemnity Seller Payment Transaction Percentage as set forth on Schedule 1 attached hereto (the “Indemnity Seller Payment Transaction Percentage”); provided, that the Escrow Agent to release such excess (or shall retain in the total remaining amountIndemnity Escrow Deposit an amount of Buyer Shares valued at the Agreed Upon Per Share Value, if applicable) to the Exchange Agent for distribution extent available, an amount equal to the Company Members sum of (A) any amount then payable to the Buyer under Section 2(b)(ii) and (B) any additional amount of Indemnification Losses claimed in good faith by the Buyer and disputed in good faith by the Sellers’ Representative in accordance with their respective Pro Rata PercentagesSection 2(b)(iii).

Indemnity Escrow Fund. (i) The Indemnity Company Shareholders, jointly and severally, agree to indemnify and hold Parent and its Representatives and Affiliates (including the Company) (collectively, the "INDEMNIFIED PERSONS") from and harmless against all claims, losses, liabilities, damages, deficiencies, costs, expenses (including reasonable attorneys' fees and expenses of investigation) and diminution in value (hereinafter individually a "LOSS" and collectively "LOSSES") incurred by the Indemnified Persons directly or indirectly as a result of (A) any Breach of a representation or warranty of the Company contained in this Agreement, or (B) any failure by the Company to perform or comply with any covenant contained in this Agreement. The Escrow Fund shall be held available to compensate the Indemnified Persons for such Losses. Company Shareholders shall not have any right of contribution from Parent with respect to any Loss claimed by Parent. Parent and disbursed by the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. (ii) As soon as practicable after the Effective Time, shares of Parent Common Stock which comprise the Escrow Amount, without any act of any Company Shareholder, will be deposited with U.S. Bank Trust National Association, as Escrow Agent in accordance with (the terms of the Escrow Agreement and this Agreement; provided"ESCROW AGENT"), that in the event of conflict between the Escrow Agreement and this Agreement, this Agreement shall prevail as among the parties such deposit to this Agreement. The Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim (the "ESCROW FUND") to be governed by the terms set forth herein. The portion of the Parent Indemnified Parties pursuant to this Article IX, and Escrow Amount contributed on behalf of each Company Shareholder shall be usedin proportion that the aggregate Merger Consideration which such holder would otherwise be entitled under SECTION 3.1 bears to the aggregate Merger Consideration to be received by all Company Shareholders. The Escrow Agent shall not be responsible for confirming that the shares contributed to the Escrow Fund comprise the Escrow Amount or that the portion contributed on behalf of each Company Shareholder is in the proper proportion, if which determination shall be made by Parent. (iii) Notwithstanding anything contained herein to the contrary, the Company Shareholders shall not have any liability or obligation to indemnify any Indemnified Person for any Losses unless and until Officer's Certificates (as hereinafter defined) shall have been delivered with respect to Losses which equal or exceed $20,000 in the aggregate for all Losses (the "BASKET AMOUNT"). At such time as Officer's Certificates with respect to Losses which meet the foregoing thresholds have been delivered, Parent Indemnified Parties become and Sub shall be entitled to indemnification from for all Losses, including the Key Basket Amount. (iv) The Escrow Fund shall be available to compensate the Indemnified Persons and Company Members pursuant for Losses. (v) The Escrow Fund also shall be available to this Article IX, solely to promptly satisfy reimburse Parent for the amount owed or payable to the Parent Indemnified Parties cost of any Transaction Fees (as defined in connection therewith. Promptly following the first (1stSection 12.12 hereof) 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 paid by Parent that has not been finally resolved pursuant to this Article IX (each, a “Pending Claim”). Upon the resolution of any Pending Claim, if and to the extent that amount remaining in they exceed $900,000 (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"FEE CAP").

Indemnity Escrow Fund. (a) The Indemnity Escrow Amount shall be deposited with U.S. Bank National Association, as escrow agent (the “Escrow Agent”), such deposit to constitute an escrow fund (the “Indemnity Escrow Fund”) and to be governed by the provisions set forth herein and in the Escrow Agreement. Subject to the other provisions of this Article 8, the Indemnity Escrow Fund shall be held and disbursed available as partial security to compensate Acquiror (on behalf of itself or any other Indemnified Party) for Losses pursuant to the indemnification obligations of the Shareholder under this Article 8. The Escrow Agent shall retain the Indemnity Escrow Fund until 11:59 p.m. Pacific time on the date that is eighteen (18) months after the Closing Date (the “Indemnity Escrow Release Date”). No portion (nor all) of the Indemnity Escrow Fund, nor any beneficial interest therein, may be pledged, subjected to any Encumbrance, sold, assigned or transferred, by the Shareholder, or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of the Shareholder, in each case prior to the disbursement of the Indemnity Escrow Agent Fund to the Shareholder in accordance with Section 8.1(b). (b) As soon as practicable and in any event no later than five (5) Business Days following 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 Release Date, Parent Acquiror and the Equityholders’ Representative will jointly Shareholder shall instruct the Escrow Agent to disburse any remaining portion of the Indemnity Escrow Fund, less an amount equal to the Losses claimed by Shareholder 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 then remaining in the Indemnity Escrow Fund exceeds minus that portion of the amount Indemnity Escrow Fund that is determined, in the good faith judgment of Acquiror, to be necessary to satisfy all unresolved Pending Claimsunsatisfied or disputed claims for indemnification specified in any Claim Notice (pursuant to the requirements of Section 8.5) delivered to the Escrow Agent and the Shareholder prior to the Indemnity Escrow Release Date in accordance with this Article 8, if anyany (the “Reserve Amount”). The Reserve Amount shall remain in the Indemnity Escrow Fund until such claims for indemnification have been resolved or satisfied. As soon as practicable and in any event within five (5) Business Days following resolution of such claims, Parent Acquiror and the Equityholders’ Representative will jointly Shareholder shall instruct the Escrow Agent to release such excess (or the total remaining amount, if applicable) disburse to the Exchange Agent for distribution Shareholder any portion of the Reserve Amount that is not awarded to Acquiror upon the Company Members in accordance with their respective Pro Rata Percentagesresolution of such claims.

Indemnity Escrow Fund. (a) The Indemnity Escrow Fund shall be held available to compensate the Indemnified Parties for any claims by such parties for any Losses suffered or incurred by them and disbursed by for which they are entitled to recovery under this Article IX. Except as set forth below, the period during which claims for Losses to be recovered from the Indemnity Escrow Fund may be made under this Agreement shall commence at the Closing and terminate on the date that is one (1) year after the Closing Date (the “Escrow Period”). (b) No later than five (5) Business Days after the end of the Escrow Period, the remaining portion of the Indemnity Escrow Amount, less any amount of actual Losses or Losses estimated in good faith, if possible, in respect of any resolved claims that have yet to be satisfied or any unresolved and pending claims specified in any Officer’s Certificate (“Unresolved Claims”) delivered to the Escrow Agent and the Securityholder Representative in accordance with Section 9.5 on or prior to the end of the Escrow Period (the “Initial Indemnity Escrow Release Amount”), shall be distributed to the Indemnifying Parties in accordance with their respective then-unpaid Pro Rata Portion of the Remaining Indemnity Escrow Fund Amount and the terms of the Escrow Agreement and this Agreement; provided, that in . (c) In the event that there exist Unresolved Claims as of conflict between the expiration of the Escrow Agreement Period, as soon as each such Unresolved Claims has been resolved, the Escrow Agent shall promptly, and this Agreementin any event within five (5) Business Days following the resolution or satisfaction of such Unresolved Claims, this Agreement shall prevail as among deliver to the parties to this Agreement. The Indemnifying Parties in accordance with their respective then-unpaid Pro Rata Portion of the Remaining Indemnity Escrow Fund shall constitute an escrow fund securing any indemnification claim Amount and the terms of the Parent Indemnified Parties pursuant to this Article IXEscrow Agreement, 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 if any, that was retained for purposes of satisfying such claim that was not needed to satisfy such claim (each, a “Subsequent Indemnity Escrow Release Amount”). (d) For purposes of this Agreement, “Remaining Indemnity Escrow Fund Amount” shall mean an amount equal to the Losses claimed by sum of 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 Initial Indemnity Escrow Fund exceeds the amount of Release Amount and all unresolved Pending Claims, if any, Parent and the Equityholders’ Representative will jointly instruct the Subsequent Indemnity 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 PercentagesRelease Amounts.

Indemnity Escrow Fund. The (a) From and after the Closing, the Indemnity Escrow Fund less any amounts thereof previously paid out pursuant to this Section 5.1 shall be available to indemnify Parent, the Surviving Corporation and each of their officers, directors and Affiliates (the “Parent Indemnified Parties”) for any and all losses, damages, costs, obligations, liabilities and reasonable expenses (including, whether involving a third party or a claim solely between the parties hereto, reasonable expenses of investigation and reasonable fees and disbursements of counsel, environmental consultants, engineers or other professionals) (“Damages”) in respect of which such Parent Indemnified Parties may be indemnified under this Article V and as provided in the Escrow Agreement. (b) Following the Closing the indemnification provisions of this Article V and resort to the Indemnity Escrow Fund as provided in this Article V and the Escrow Agreement shall be the sole and exclusive remedy of Parent Indemnified Parties for any breach of or inaccuracy in any representation or warranty made by the Company or any Seller contained in this Agreement or the Related Agreements or any breach or non-performance by any Seller or the Company of any covenant or agreement to be performed by any of them pursuant to this Agreement or the Related Agreements. (c) After the first anniversary of the Closing Date (the “Termination Date”), any funds remaining in the Indemnity Escrow Fund shall be held distributed to the Common Holders and disbursed by the Escrow Agent Option Holders 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 Agreementhowever, 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 there may 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 retained in the Indemnity Escrow Fund exceeds the amount of all unresolved Pending Claimspending claims for indemnification under this Article V by any Parent Indemnified Party, if any, Parent and the Equityholders’ Representative will jointly instruct the Escrow Agent to release until resolution of any 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 Percentagespending claim.

Indemnity Escrow Fund. (a) Subject to and in accordance with the Indemnity Escrow Agreement and Section 10.2(b) and (c) hereof, once the Deductible has been reached, the full amount of all Losses (aggregating all of the claims against the Company Indemnitors) in excess of the Deductible shall be subject to indemnification and Parent may make a claim pursuant to the terms of the Indemnity Escrow Agreement to have a number of Indemnity Escrow Shares and/or amount of Indemnity Escrow Cash released to Parent from the Indemnity Escrow Fund that have an aggregate value equal to the amount of all such Losses, in the manner provided in the Indemnity Escrow Agreement. To the extent that the Parent Indemnitees are entitled to receive any amount from the Indemnity Escrow Fund pursuant to this Article X above and any portion of such amount is to be received in the form of Parent Common Stock held in the Indemnity Escrow Fund, then for the purposes of determining the number of shares of Parent Common Stock to be included in such amount, the shares of Parent Common Stock shall be valued at a price per share equal to the volume weighted average of the closing price per share of Parent Common Stock over the last thirty (30) trading days ending one business day prior to date that the Parent Indemnitees receive such amount, as adjusted for stock splits, stock dividends, and similar events. (b) The release of Indemnity Escrow Shares and/or Indemnity Escrow Cash from the Indemnity Escrow Fund shall be held the exclusive post-Closing remedy for Losses pursuant to Section 10.2(a)(i) (“Warranty Losses”). (c) The indemnity provided for in this Article X shall be Parents’ and disbursed the Surviving Corporation’s sole remedy, and the Company Stockholders’ sole liability, with respect to a breach of any representation, warranty or covenant of the Company or of any Company Stockholder contained in this Agreement or any other document, instrument or agreement required or contemplated to be executed and/or delivered by the Escrow Agent in accordance with Company or the terms of the Escrow Agreement and this AgreementCompany Stockholders hereunder; provided, however, that nothing contained in this Article X shall be deemed to limit or restrict in any manner any rights or remedies which the event Parent Indemnitees have, or might have, at Law, in equity or otherwise, based on (i) fraud or willful misrepresentation or willful breach of conflict between the Escrow Agreement and this Agreementany representation, warranty, covenant or agreement contained in this Agreement or certificate or other document furnished or to be furnished to Parent in connection with the transactions contemplated hereby, or (ii) any breach by a Company Stockholder of any covenant or agreement contained in any other agreement entered into by such Company Stockholder with or for the benefit of Parent in connection with the Merger; provided, further, that nothing contained in this Article X shall prevail as among be deemed to limit or restrict in any manner any rights or remedies which the parties to Company Indemnitees have, or might have, at Law, in equity or otherwise, based on fraud or willful misrepresentation. (d) The adoption of this Agreement. The Indemnity Escrow Fund shall Agreement by the Company Stockholders constitute an escrow fund securing any indemnification claim approval of the Parent Indemnified Parties pursuant to indemnification obligations of the Company Stockholders set forth in 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.X.