Common use of Indemnity Fund Clause in Contracts

Indemnity Fund. The Company expressly agrees that proceedings or threatened litigation may jeopardise the ability of the Company to act expeditiously or in good faith, or which may place persons in a capacity to influence the Company to resist good faith compliance herewith, the Company will, within two (2) days of written request, advance up to $200,000 (CDN) to a trust fund (the “Indemnity Fund”) with counsel of the Indemnitee's choice as assurance and security against possible processes or as security for on-going process. The Company warrants and undertakes that it shall not attack or attach or seek to otherwise impair to diminish such Indemnity Fund and warrants that such trust is established with the Company as settler of the trust and the Indemnitee is for all purposes a trust beneficiary but with sole rights of direction of the same for the purposes hereof, such trust and the assets thereof vest and are established for all purposes in the Indemnitee in the hands of his counsel (as trustee) immediately upon funds being delivered to such counsel and the same is and shall be an irrevocable trust in favour of the Indemnitee for the purposes stated in this Agreement. Regardless of the funding of the Indemnity Fund the Company shall pay all Expenses and the Indemnitee is not required to employ the Indemnity Fund first for Expenses or indemnification (the Indemnity Fund is an assurance of last resort for the Indemnitee for Expenses) but, unless otherwise agreed by the Indemnitee, such fund shall be retained unimpaired as continuing security in the event that the Company fails to provide indemnity at any time or is unable to do so. The Indemnitee may elect to employ such Indemnity Fund to assist any other Agent of the Company, who the Company has failed or unreasonably refused to indemnify (such judgement shall be at the reasonable discretion of the Indemnitee unless the Company shall show just and reasonable cause why such other Agent has no right in law to indemnity and, if required by the Indemnitee, has shown such to the satisfaction of a court) similarly situated to the Indemnitee. At any time that the Indemnitee employs any part of the Indemnity Fund the Company shall replenish the Indemnity Fund immediately at the requirement of the Indemnitee.

Indemnity Fund. The Company expressly agrees that proceedings or threatened litigation may jeopardise the ability of the Company to act expeditiously or in good faith, or which may place persons in a capacity to influence the Company to resist good faith compliance herewith, the Company will, within two (2) days of written request, advance up to $200,000 (CDN) to a trust fund (the “"Indemnity Fund”") with counsel of the Indemnitee's Indemnitee 's. choice as assurance and security against possible processes or as security for on-going process. The Company warrants and undertakes that it shall not attack or attach or seek to otherwise impair to diminish such Indemnity Fund and warrants that such trust is established with the Company as settler of the trust and the Indemnitee is for all purposes a trust beneficiary but with sole rights of direction of the same for the purposes hereof, such trust and the assets thereof vest and are established for all purposes in the Indemnitee in the hands of his counsel (as trustee) immediately upon funds being delivered to such counsel and the same is and shall be an irrevocable trust in favour of the Indemnitee for the purposes stated in this Agreement. Regardless of the funding of the Indemnity Fund the Company shall pay all Expenses and the Indemnitee is not required to employ the Indemnity Fund first for Expenses or indemnification (the Indemnity Fund is an assurance of last resort for the Indemnitee for Expenses) but, unless otherwise agreed by the Indemnitee, such fund shall be retained unimpaired as continuing security in the event that the Company fails to provide indemnity at any time or is unable to do so. The Indemnitee may elect to employ such Indemnity Fund to assist any other Agent of the Company, who the Company has failed or unreasonably refused to indemnify (such judgement shall be at the reasonable discretion of the Indemnitee unless the Company shall show just and reasonable cause why such other Agent has no right in law to indemnity and, if required by the Indemnitee, has shown such to the satisfaction of a court) similarly situated to the Indemnitee. At any time that the Indemnitee employs any part of the Indemnity Fund the Company shall replenish the Indemnity Fund immediately at the requirement of the Indemnitee.

Indemnity Fund. (a) Promptly following the Closing, Parent shall give to the Parent Transfer Agent instructions for delivery of the Indemnity Shares to the Company Indemnitors (which Indemnity Shares shall be delivered to the Company Indemnitors in accordance with their Pro Rata Share pursuant to Section 2.6(a)(ii)). As used herein, the “Indemnity Fund” shall mean and refer to, from time to time, such Indemnity Shares delivered to the Company Indemnitors (and any property or other securities issued upon conversion thereof or in exchange therefor) other than any such Indemnity Shares that shall have been Released from Indemnity pursuant to the terms of this Agreement. The Company expressly agrees that proceedings Indemnity Fund (and any Release from Indemnity of the Indemnity Shares comprising such Indemnity Fund) shall be governed by this Agreement and shall constitute partial security for the benefit of Parent (on behalf of itself or threatened litigation may jeopardise any other Parent Indemnified Person) with respect to any Damages indemnifiable pursuant to the ability indemnification obligations of the Company to act expeditiously or Indemnitors under this Section 9. During such time as the Indemnity Shares are held in good faith, or which may place persons in a capacity to influence the Company to resist good faith compliance herewithIndemnity Fund, the Company willIndemnitors shall be entitled to receive any dividends paid or payable, within two and to exercise any voting rights, with respect to their Pro Rata Shares of such Indemnity Shares and shall be treated as the beneficial owners thereof for U.S. federal income tax purposes. (2b) days of written requestSubject to Section 9.4, advance up to $200,000 (CDN) to a trust fund the Company Indemnitors shall hold the Indemnity Fund until 11:59 p.m. Eastern Time on February 4, 2024 (the “Indemnity FundRelease Date”) with counsel of ). Neither the Indemnitee's choice as assurance and security against possible processes or as security for on-going process. The Company warrants and undertakes that it shall not attack or attach or seek to otherwise impair to diminish such Indemnity Fund and warrants that such trust is established with (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Company Indemnitor or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Company Indemnitor, in each case prior to the Company as settler of the trust and the Indemnitee is for all purposes a trust beneficiary but with sole rights of direction of the same for the purposes hereof, such trust and the assets thereof vest and are established for all purposes in the Indemnitee in the hands of his counsel (as trustee) immediately upon funds being delivered to such counsel and the same is and shall be an irrevocable trust in favour of the Indemnitee for the purposes stated in this Agreement. Regardless of the funding Release from Indemnity of the Indemnity Fund the (or any portion thereof) to any Company shall pay all Expenses and the Indemnitee is not required to employ the Indemnity Fund first for Expenses or indemnification (the Indemnity Fund is an assurance of last resort for the Indemnitee for Expenses) butIndemnitor in accordance with Section 9.1(b), unless otherwise agreed by the Indemnitee, such fund except that each Company Indemnitor shall be retained unimpaired as continuing security in the event that the entitled to assign such Company fails to provide indemnity at any time or is unable to do so. The Indemnitee may elect to employ such Indemnity Fund to assist any other Agent of the Company, who the Company has failed or unreasonably refused to indemnify (such judgement shall be at the reasonable discretion of the Indemnitee unless the Company shall show just and reasonable cause why such other Agent has no right in law to indemnity and, if required by the Indemnitee, has shown such Indemnitor’s rights to the satisfaction of a court) similarly situated cash, securities or other property distributable to the Indemnitee. At any time that the Indemnitee employs any part such Company Indemnitor upon Release from Indemnity of the Indemnity Fund by will, by the laws of intestacy or by other operation of law. (c) On the Indemnity Release Date, Parent and the Securityholder Agent shall Release from Indemnity to the Company shall replenish Indemnitors, the Indemnity Fund immediately at the requirement less that portion of the IndemniteeIndemnity Fund (rounded down to the nearest whole share) that is necessary to satisfy all unsatisfied or disputed claims for indemnification specified in reasonable detail in any Claim Certificate delivered in good faith to the Securityholder Agent on or prior to the Indemnity Release Date in accordance with this Section 9 (assuming that the value of each Indemnity Share equals the greater of the Parent Share Price and the volume weighted average price (“VWAP”) of a share of Parent Common Stock on the Nasdaq Global Market in the 30 trading days prior to the Indemnity Release Date). Any portion of the Indemnity Fund not Released from Indemnity to the Company Indemnitors pursuant to the prior sentence shall, other than any portion awarded to Parent in connection with the resolution thereof (which shall be paid in accordance with Section 9.7(a), Section 9.7(b) or Section 9.7(c), as applicable), be promptly Released from Indemnity to the Company Indemnitors upon the satisfaction or resolution of such claim.

Indemnity Fund. The Company expressly agrees that proceedings or threatened litigation may jeopardise At the ability of Closing, Sellers shall deposit --------------- with the Company to act expeditiously or in good faithEscrow Agent $7,350,000 (together with all investment earnings thereon, or the "Indemnity Fund"), which may place persons shall be held by Escrow Agent in a capacity to influence the Company to resist good faith compliance herewith, the Company will, within two (2) days of written request, advance up to $200,000 (CDN) to a trust fund (the “Indemnity Fund”) with counsel of the Indemnitee's choice as assurance and security against possible processes or as security for on-going process. The Company warrants and undertakes that it shall not attack or attach or seek to otherwise impair to diminish such Indemnity Fund and warrants that such trust is established with the Company as settler of the trust and the Indemnitee is for all purposes a trust beneficiary but with sole rights of direction of the same for the purposes hereof, such trust and the assets thereof vest and are established for all purposes in the Indemnitee in the hands of his counsel (as trustee) immediately upon funds being delivered to such counsel and the same is segregated account and shall be an irrevocable trust invested only in favour Permitted Investments. The $7,350,000 amount deposited shall at all times be comprised, at Sellers' sole discretion, of (a) cash or (b) subject to any modification of the Indemnitee for the purposes stated escrow provisions set forth in this AgreementSection as may be reasonably required by Buyer, unconditional, irrevocable letters of credit issued by a Person reasonably acceptable to Buyer, and having terms, conditions and an expiration date reasonably acceptable to Buyer. Regardless In the event Buyer makes a claim or demand under this Contract or any other agreement entered into between Sellers and Buyer at Closing, and the Sellers do not dispute such claim or demand, or are determined to be liable pursuant to such claim or demand by a court of competent jurisdiction or otherwise in a mutually acceptable dispute resolution forum (after the funding expiration of all applicable and available appeal periods or the earlier resolution of such appeals), then if the applicable Sellers fail promptly to pay such claim or demand, Escrow Agent promptly upon the receipt of notice shall pay such claim or demand in full, in any event not to exceed the available funds in the Indemnity Fund. On the Termination Date the Escrow Agent promptly shall return all remaining funds or letters of credit in the Indemnity Fund the Company shall pay all Expenses and the Indemnitee is not required to employ the Indemnity Fund first for Expenses or indemnification (the Indemnity Fund is an assurance of last resort for the Indemnitee for Expenses) butSellers; provided, unless otherwise agreed by the Indemniteehowever, such fund shall be retained unimpaired as continuing security in the event that the Company fails to provide indemnity at any time or is unable to do so. The Indemnitee may elect to employ such Indemnity Fund to assist any other Agent of the Company, who the Company has failed or unreasonably refused to indemnify (such judgement shall be at the reasonable discretion of the Indemnitee unless the Company shall show just and reasonable cause why such other Agent has no right in law to indemnity and, if required by the Indemnitee, has shown such prior to the satisfaction Termination Date Buyer shall -------- ------- have either commenced litigation to enforce the terms of a court) similarly situated its rights hereunder or provided notice to Escrow Agent setting forth in reasonable detail the Indemnitee. At facts and circumstances of any time that the Indemnitee employs any part of the Indemnity Fund the Company shall replenish the Indemnity Fund immediately at the requirement of the Indemnitee.claim, liability, cost or expense to

Indemnity Fund. The Company expressly agrees that proceedings or threatened litigation may jeopardise At the ability of Closing, Seller shall deposit --------------- with the Company to act expeditiously or in good faithEscrow Agent $150,000 (together with all investment earnings thereon, or the "Indemnity Fund"), which may place persons shall be held by Escrow Agent in a capacity to influence the Company to resist good faith compliance herewith, the Company will, within two (2) days of written request, advance up to $200,000 (CDN) to a trust fund (the “Indemnity Fund”) with counsel of the Indemnitee's choice as assurance and security against possible processes or as security for on-going process. The Company warrants and undertakes that it shall not attack or attach or seek to otherwise impair to diminish such Indemnity Fund and warrants that such trust is established with the Company as settler of the trust and the Indemnitee is for all purposes a trust beneficiary but with sole rights of direction of the same for the purposes hereof, such trust and the assets thereof vest and are established for all purposes in the Indemnitee in the hands of his counsel (as trustee) immediately upon funds being delivered to such counsel and the same is segregated account and shall be an irrevocable trust invested only in favour Permitted Investments. The $150,000 amount deposited shall at all times be comprised, at Seller's sole discretion, of (a) cash or (b) subject to any modification of the Indemnitee for the purposes stated escrow provisions set forth in this AgreementSection as may be reasonably required by Buyer, unconditional, irrevocable letters of credit issued by a Person reasonably acceptable to Buyer, and having terms, conditions and an expiration date reasonably acceptable to Buyer. Regardless In the event Buyer makes a claim or demand under this Contract or any other agreement entered into between Seller and Buyer at Closing, and the Seller does not dispute such claim or demand, or is determined to be liable pursuant to such claim or demand by a court of competent jurisdiction or otherwise in a mutually acceptable dispute resolution forum (after the funding expiration of all applicable and available appeal periods or the earlier resolution of such appeals), then if Seller fails promptly to pay such claim or demand, Escrow Agent promptly upon the receipt of notice shall pay such claim or demand in full, in any event not to exceed the available funds in the Indemnity Fund. On the Termination Date the Escrow Agent promptly shall return all remaining funds or letters of credit in the Indemnity Fund to Seller; provided, however, that if -------- ------- on or before the Company Termination Date, Buyer shall pay have either commenced litigation to enforce the terms of its rights hereunder or provided notice to Escrow Agent setting forth in reasonable detail the facts and circumstances of any claim, liability, cost or expense to which Buyer is entitled to indemnification hereunder, the terms of this Section shall be extended until the final resolution of such litigation, including any appeal, provided that all Expenses and the Indemnitee is not required to employ amounts or letters of credit remaining in the Indemnity Fund first for Expenses at such time in excess of the amount of the alleged claim, liability, cost or indemnification expense (the Indemnity Fund is an assurance of last resort for the Indemnitee for Expensesplus reasonable estimated Attorneys' Fees) but, unless otherwise agreed by the Indemnitee, such fund or demand shall be retained unimpaired as continuing security returned to the Seller on the Termination Date. Buyer agrees that its sole remedy and recourse with respect to any claims arising under or in connection with this Contract that Buyer elects to pursue after the event that the Company fails to provide indemnity at any time or is unable to do so. The Indemnitee may elect to employ such Indemnity Fund to assist any other Agent of the Company, who the Company has failed or unreasonably refused to indemnify (such judgement Closing shall be at the reasonable discretion of the Indemnitee unless the Company shall show just and reasonable cause why such other Agent has no right in law made pursuant to indemnity and, if required by the Indemnitee, has shown such to the satisfaction of a court) similarly situated to the Indemnitee. At any time that the Indemnitee employs any part of the Indemnity Fund the Company shall replenish the Indemnity Fund immediately at the requirement of the Indemniteethis Section 6.13.

Indemnity Fund. The Company expressly agrees that proceedings or threatened litigation may jeopardise (a) Promptly after the ability of the Company to act expeditiously or in good faith, or which may place persons in a capacity to influence the Company to resist good faith compliance herewithEffective Time, the Company willIndemnity Shares shall be registered in the name of, within two and be deposited with LaSalle Bank National Association (2or another institution selected by the parties) days of written request, advance up to $200,000 (CDN) to a trust fund as Indemnity Fund and collateral agent (the “Indemnity FundAgent”) with counsel of ). Such deposit shall constitute the Indemnitee's choice as assurance and security against possible processes or as security for on-going process. The Company warrants and undertakes that it shall not attack or attach or seek to otherwise impair to diminish such initial Indemnity Fund and warrants that such trust is established with shall be governed by the Company as settler of the trust terms set forth herein and the Indemnitee is for all purposes a trust beneficiary but with sole rights of direction of the same for the purposes hereof, such trust and the assets thereof vest and are established for all purposes in the Indemnitee in the hands of his counsel (as trustee) immediately upon funds being delivered to such counsel and the same is and shall be an irrevocable trust in favour of the Indemnitee for the purposes stated in this Indemnity Agreement. Regardless of the funding All dividends and distributions in respect of the Indemnity Fund Shares, whether in cash, additional Parent Common Stock or other property, received by the Indemnity Agent shall be distributed currently to the Company shall pay all Expenses and the Indemnitee is not required to employ Stockholders in accordance with the Indemnity Fund first for Expenses Agreement; provided, that stock dividends made to effect stock splits or indemnification (the Indemnity Fund is an assurance of last resort for the Indemnitee for Expenses) but, unless otherwise agreed by the Indemnitee, such fund similar events shall be retained unimpaired as continuing security in the event that the Company fails to provide indemnity at any time or is unable to do so. The Indemnitee may elect to employ such Indemnity Fund to assist any other Agent of the Company, who the Company has failed or unreasonably refused to indemnify (such judgement shall be at the reasonable discretion of the Indemnitee unless the Company shall show just and reasonable cause why such other Agent has no right in law to indemnity and, if required by the Indemnitee, has shown such to the satisfaction of a court) similarly situated to the Indemnitee. At any time that the Indemnitee employs any Indemnity Agent as part of the Indemnity Fund. The Indemnity Fund shall be available to indemnify, hold harmless and reimburse any Parent Group Member from and against any Loss or Expense indemnifiable under this Article VIII and as provided in the Company Indemnity Agreement. (b) Nothing in this Agreement shall replenish limit the liability of the parties for any breach of any representation, warranty or covenant contained in this Agreement if it shall be terminated, provided that resort to the Indemnity Fund immediately at shall be the requirement exclusive remedy of the IndemniteeParent Group Members for any such breaches and misrepresentations following the Effective Time other than for fraud. (c) For purposes of this Agreement, (i) “Expense” means any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals), (ii) “Loss” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, Taxes, fines, penalties, damages, expenses, deficiencies or other charges, and (iii) “Parent Group Members” means Parent and its Affiliates and their respective successors and assigns, including, after the Effective Time, the Surviving Corporation.