Common use of Indemnity Holdback Clause in Contracts

Indemnity Holdback. A portion of the Purchase Price in the amount of $200,000 (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (the “Holdback Account”). The Indemnity Holdback Amount shall be applied in accordance with the terms of this Agreement to pay amounts owing or payable under this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows: (a) In the event of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant to Section 7.4 of this Agreement. (b) In the event that (i) Shareholder shall not have furnished to Parent a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received a final, non-appealable order of any court of competent jurisdiction (the “Court”) relating to the disposition of such Claim (a “Final Judgment”), Parent shall disburse to the Parent Indemnified Party the entire amount determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent and Shareholder, as the case may be. (c) On March 31, 2008 (the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse one half of the Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Initial Disbursement Date, Parent shall disburse to Shareholder an amount equal to one-half of (i) the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) pursuant to this Section 3.4 and except as otherwise mutually agreed upon by Parent and Shareholder in writing, Parent shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgment.

Indemnity Holdback. A The "Holdback" shall consist of Two Million Dollars ($2,000,000) of the Merger Consideration to be withheld by the Parent at the Closing and, to the extent all or any portion of the Purchase Price in Holdback becomes payable to the amount Caroderm shareholders pursuant to the provisions of $200,000 (the “Indemnity Holdback Amount”) this Section 7.3.3, shall be deposited by Parent into paid to the Caroderm shareholders, on a pro rata basis, as an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (element of the “Holdback Account”)Merger Consideration. The Indemnity Holdback Amount Nothing contained in this Agreement shall be applied in accordance with the terms construed to limit any rights of this Agreement to pay amounts owing or payable under this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows: (a) In the event of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant to Section 7.4 of this Agreement. (b) In the event that (i) Shareholder shall not have furnished to Parent a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount full indemnification or (y) Parent and Shareholder shall have received a final, non-appealable order of otherwise against any court of competent jurisdiction (the “Court”) relating Caroderm shareholder severally with respect to the disposition failure of such Claim (a “Final Judgment”)Caroderm shareholder to have good, Parent valid and marketable title to any Caroderm Shares held by holder as represented herein, free and clear of all Liens or to have the full right, capacity and authority to vote all of such Caroderm Shares in favor of the Merger and any other transaction contemplated by this Agreement; provided that in no event shall disburse any Caroderm shareholder have liability to the Parent Indemnified Parties for Losses in excess of the Merger Consideration payable to such Caroderm shareholder. On expiration of one year from the date hereof, One Million Dollars ($1,000,000) of the Holdback less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. On expiration of the Survival Period, all remaining amounts in the Holdback that have not been used to compensate a Parent Indemnified Party as provided in this Article VII or which do not constitute a Reserve Amount, shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. Notwithstanding the foregoing, if, prior to the first anniversary of the Closing Date, the Shareholders shall have delivered to Purchaser from each of the holders of Caroderm Shares a consent to the Merger (in the form delivered by the Shareholders to Purchaser in connection with the approval of the Merger), then, on the first anniversary of the Closing Date, the entire amount determined Holdback, less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be owed distributed to the Caroderm shareholders. On resolution of the claim underlying any Reserve Amount or on expiration of Survival Period without a formal proceeding having been filed against the Parent Indemnified Part Parties with respect to the underlying claim, any Reserve Amounts shall be distributed to the shareholders of Caroderm in the same proportion as set forth in above. On any distribution from the Required NoticeHoldback, interest or other earnings accrued on the Final Judgment, or as determined by mutual agreement of Holdback amount shall be allocated between Parent and Shareholder, as the case may be. (c) On March 31, 2008 (shareholders of Caroderm based on the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse one half respective portions of the Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Initial Disbursement Date, Parent shall disburse to Shareholder an amount equal to one-half of (i) the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) otherwise received by them pursuant to this Section 3.4 and except section. Notwithstanding the foregoing, any two or more Caroderm shareholders may agree to allocate as otherwise mutually agreed upon between themselves any payments to be received by such shareholders from Parent and Shareholder in writing, Parent shall continue make payment according to hold such allocation if Parent is instructed to do so in a writing signed by the Indemnity Holdback Amount (including any earnings thereon) Caroderm shareholders in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgmentquestion.

Indemnity Holdback. A portion of (a) On the Purchase Price Closing Date, Purchaser shall deposit into the Indemnity Holdback Escrow Account an amount equal to Sixty-Three Million Four Hundred Twenty-Six Thousand Two Hundred Fifty-Nine and NO/100 Dollars ($63,426,259.00) in the amount of $200,000 cash (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder ), for the purpose of securing the satisfaction and Parent at RBC Centura Bank or any other mutually agreeable financial institution (discharge of indemnity claims of Purchaser against Seller under this Agreement. For the “avoidance of doubt, the Indemnity Holdback Account”Amount represents a portion of, and is not in addition to, the Purchase Price and will reduce the Cash Closing Payment as provided in Section 8.4(a). The Indemnity Holdback Amount Escrow Account shall be applied in accordance with governed by the terms provisions of this Agreement Section ‎8.5 and an escrow agreement that Purchaser and Seller shall execute and deliver at Closing to pay amounts owing or payable under the Escrow Agent (with each Party negotiating reasonably, in good faith and without undue delay) and which shall be in customary form and contain terms and provisions consistent with this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The Section 8.5 (the “Indemnity Holdback Amount Escrow Agreement”). Except as expressly provided herein, the joint, written authorization of representatives of both Purchaser and Seller pursuant to the Indemnity Holdback Escrow Agreement shall be applied by Parent as follows: (a) In required for the event disbursement of a claim for indemnification pursuant to Article VII any portion of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant to Section 7.4 of this AgreementIndemnity Holdback Amount. (b) In With respect to each claim for indemnification asserted by Purchaser against Seller pursuant to ‎Article 11 during the period from and after the Closing Date up to the date that is eighteen (18) months following the Closing Date (the “Holdback Period”), upon final resolution or determination of such an indemnity claim by the Parties or in accordance with Section 12.5, such amount as would satisfy such finally resolved or determined indemnity claim will, to the extent it is capable of being satisfied (in whole or in part) by the amounts remaining in the Indemnity Holdback Escrow Account as of such time, be satisfied first from the Indemnity Holdback Escrow Account and Purchaser and Seller shall promptly (and in any event that within two (i2) Shareholder Business Days after such resolution or determination) jointly instruct the Escrow Agent to disburse to Purchaser a portion of the Indemnity Holdback Amount equal to such amount. For the avoidance of doubt, disbursements from the Indemnity Holdback Escrow Account shall not have furnished be the sole and exclusive recourse of Purchaser for any breach of any representation, warranty or covenant of Seller pursuant to Parent this Agreement or any other post-Closing liability of Seller pursuant to this Agreement (including any indemnity obligation), and, if such amounts in the Indemnity Holdback Escrow Account are insufficient to fully satisfy any amounts to which any member of the Purchaser Group may be entitled hereunder, such insufficiency shall not be deemed to prohibit, restrict or otherwise limit such member of the Purchaser Group from seeking recovery hereunder. (c) If, upon the final resolution or determination of any such indemnity claim during the Holdback Period, Purchaser and Seller fail to deliver a joint written instruction to the Escrow Agent in accordance with Section 8.5(b), then the Escrow Agent shall, upon delivery by Purchaser or Seller to the Escrow Agent of a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received a final, non-appealable court order of any from a court of competent jurisdiction jurisdiction, disburse to Purchaser a portion of the Indemnity Holdback Amount equal to the amounts set forth in such court order. (d) Purchaser and Seller shall jointly instruct the Escrow Agent to release to Seller (i) on December 15, 2021 (the “Court”) relating to the disposition of such Claim (a “Final JudgmentFirst Holdback Release Date”), Parent an amount equal to fifty percent (50%) of the then-remaining Indemnity Holdback Amount less an amount equal to the aggregate amount of all outstanding claims for indemnification for which Purchaser has provided notice to Seller and that have not been previously satisfied in full (which amount shall remain part of the Indemnity Holdback Escrow Account until final resolution of such outstanding indemnity claims (the “Initial Release Disputed Claims”)); provided, that if the amount of the then-remaining Indemnity Holdback Amount less the amount of the Initial Release Disputed Claims is equal to an amount that is equal to or less than fifty percent (50%) of the original Indemnity Holdback Amount, then no amounts will be released from the Indemnity Holdback Escrow Account on the First Holdback Release Date, and (ii) subject to the foregoing, on the first Business Day after the expiration of the Holdback Period, any amount then-remaining in the Indemnity Holdback Escrow Account except for any amounts retained in the Indemnity Holdback Escrow Account at such time in respect of any Initial Release Disputed Claims plus an amount equal to the aggregate amount of all outstanding claims for indemnification made subsequent to the First Holdback Release Date for which Purchaser has provided notice to Seller and that have not been previously satisfied (which amount shall remain part of the Indemnity Holdback Escrow Account until final resolution of such outstanding indemnity claims (the “Final Release Disputed Claims” and, together with the Initial Release Disputed Claims, the “Disputed Claims”)). Upon final resolution or determination of all Disputed Claims by the Parties or in accordance with Section ‎12.7, as applicable, Purchaser and Seller shall deliver to the Escrow Agent joint written instructions to disburse to Purchaser from the Parent Indemnified Party Indemnity Holdback Escrow Account an amount equal to the entire amount so finally determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent and Shareholder, as the case may be. Purchaser (c) On March 31, 2008 (the “Initial Disbursement Date”if any), so long as there is no Claim then pending, Parent shall disburse one half of and all other amounts remaining in the Indemnity Holdback Amount (including any earnings thereon) Escrow Account in respect of such Disputed Claim shall be disbursed to ShareholderSeller. If there is Purchaser and Seller fail to deliver a Claim pending on joint written instruction to the Initial Disbursement DateEscrow Agent in accordance with the foregoing sentence within three (3) Business Days following the final resolution or determination of the applicable Disputed Claim, Parent shall then the Escrow Agent shall, upon delivery by Purchaser or Seller to the Escrow Agent of a written final, non-appealable court order from a court of competent jurisdiction relating to such Disputed Claim, disburse to Shareholder an amount equal to one-half of (i) from the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded Escrow Account in the applicable Required Notice. (d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no respect of such Disputed Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) pursuant to this Section 3.4 and except as otherwise mutually agreed upon by Parent and Shareholder in writing, Parent shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgmentthe immediately preceding sentence.

Indemnity Holdback. A portion of the Purchase Price in the amount of $200,000 (the “Indemnity Holdback Amount”) shall be deposited by Parent Purchaser into an account mutually agreed to by Shareholder the Representative and Parent Purchaser at RBC Centura Bank Bank, or any other mutually agreeable financial institution (the “Holdback Account”). The Indemnity Holdback Amount shall be applied in accordance with the terms of this Agreement to pay amounts owing or payable under this Agreement by Shareholder the Shareholders to Parent Purchaser with any remaining funds to be distributed to Shareholderthe Shareholders. The Indemnity Holdback Amount shall be applied by Parent Purchaser as follows: (a) In the event of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Purchaser Indemnified Party hereunder (a “Claim”), Parent Purchaser shall give Shareholder the Representative the Required Notice pursuant to Section 7.4 7.3 of this Agreement. (b) In the event that (i) Shareholder the Representative shall not have furnished to Parent Purchaser a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder the Representative shall have delivered to ParentPurchaser, Shareholderthe Representative’s written objection to the Required Notice and either (x) Shareholder the Representative and Parent Purchaser shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is the Shareholders are obligated to indemnify the Parent Purchaser Indemnified Parties for a specified amount or (y) Parent Purchaser and Shareholder the Representative shall have received a final, non-appealable order of any court of competent jurisdiction (the “Court”) relating to the disposition of such Claim (a “Final Judgment”), Parent Purchaser shall disburse to the Parent Purchaser Indemnified Party the entire amount determined to be owed to the Parent Purchaser Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent Purchaser and Shareholderthe Representative, as the case may be. (c) On March 31, 2008 2009 (the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent Purchaser shall disburse one half of the Indemnity Holdback Amount (including any earnings thereon) to Shareholderthe Shareholders. If there is a Claim pending on the Initial Disbursement Date, Parent Purchaser shall disburse to the Shareholder an amount equal to one-half of (i) the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (d) On March 31, 2009 2010 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent Purchaser shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholderthe Shareholders. If there is a Claim pending on the Final Disbursement Date, Parent Purchaser shall disburse to Shareholder the Shareholders an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent Purchaser shall disburse the Indemnity Holdback Amount (including any earnings thereon) pursuant to this Section 3.4 1.6, and except as otherwise mutually agreed upon by Parent Purchaser and Shareholder the Representative in writing, Parent Purchaser shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent Purchaser of a Final Judgment. Upon receipt by Parent Purchaser of a Final Judgment, Parent Purchaser shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgment.

Indemnity Holdback. A portion (a) If at any time prior to the date that is fifteen (15) months after the Closing Date (such time period, the “Holdback Period”) there are amounts remaining of the Purchase Price Applicable Holdback Amount, to the extent that the applicable Seller does not promptly (and in any event within thirty (30) days after receipt of a Claim Notice from Purchaser) reimburse or pay Purchaser for any amounts to which Purchaser is entitled with respect to valid and undisputed claim(s) asserted under Article 10, then Purchaser shall be entitled to deliver to Sellers’ Representative and the Escrow Agent a written notice (a “Holdback Claim Notice”), which notice shall specify the nature and amount of Purchaser’s claim(s) as set forth in the amount of $200,000 (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution applicable Claim Notice (the “Holdback Account”). The Indemnity Holdback Amount shall be applied in accordance with the terms of this Agreement to pay amounts owing or payable under this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows: (a) In the event of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant including details of and a specific basis under this Agreement entitling Purchaser to Section 7.4 of this Agreementsuch Holdback Claim. (b) In the event that (i) Shareholder shall not have furnished to Parent a written objection Upon final resolution of any Holdback Claim pursuant to the Required Notice within thirty (30) calendar days mutual written agreement of receipt thereof Purchaser and Sellers or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received as determined by a final, non-appealable order judgment of any a court of competent jurisdiction (the “Court”) relating in accordance with Section 14.4, or pursuant to the disposition terms of Section 2.7, if Purchaser is entitled to a disbursement of all or any portion of the Applicable Holdback Amount then-remaining, then Sellers’ Representative shall (i) provide the Transfer Agent with the applicable Transfer Agent Documentation, in which case Purchaser shall also provide the Transfer Agent with the applicable Transfer Agent Documentation, and (ii) Sellers’ Representative and Purchaser shall deliver to the Transfer Agent joint written instructions instructing the Transfer Agent to (A) transfer to Purchaser from the Applicable Holdback Amount a number of shares of Purchaser Common Equity (calculated at the Current Share Price) equal to all or a stipulated amount of such Holdback Claim and (a “Final Judgment”), Parent shall disburse to B) remove the Parent Indemnified Party the entire amount determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent and Shareholder, as the case may beContract Legends on such shares. (c) On March 31, 2008 the date that is six (6)-months following the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse one half of the Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Initial Disbursement Closing Date, Parent Sellers’ Representative and Purchaser shall disburse to Shareholder an amount equal to one-half of (i) provide the Indemnity Transfer Agent with the applicable Transfer Agent Documentation and (ii) deliver to the Transfer Agent joint written instructions instructing the Transfer Agent to remove the Contract Legend from the number of shares of Purchaser Common Equity (calculated at the Current Share Price at the date that is six (6) months following the Closing Date) equal to (A) fifty percent (50%) of the original Applicable Holdback Amount, minus (iii) the aggregate amount of all outstanding claims for which Purchaser has provided a Claim Notice to Sellers in good faith in accordance with Section 10.2 that remain unresolved or have not been previously paid to Purchaser as of such date (which shall remain part of the Applicable Holdback Amount (including any earnings thereon) until final resolution of such outstanding Claim Notices), less (ii) such number of shares of Purchaser Common Equity previously disbursed from the amount for which indemnification has been demanded in Applicable Holdback Amount (such amount, the applicable Required Notice“Six Month Holdback Amount”). (d) On March 31the date that is one (1) year following the Closing Date, 2009 unless Purchaser has delivered a Claim Notice to Sellers on or prior to such date for claims, which remain outstanding or are disputed, under Article 10 that, individually or in the aggregate, are equal to or greater than the amount of the Indemnity Deductible (the such claims, “Final Disbursement DateMaterial Claims”), so long Sellers and Purchaser shall (i) provide the Transfer Agent with the applicable Transfer Agent Documentation and (ii) deliver to the Transfer Agent joint written instructions instructing the Transfer Agent to remove the Contract Legend from the number of shares of Purchaser Common Equity (calculated at the Current Share Price as there at the date that is no Claim then pending, Parent shall disburse one (1) year following the Closing Date) equal to the remaining Indemnity Applicable Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement DateAmount, Parent shall disburse to Shareholder less and except for an amount equal to the sum of (i) fifty percent (50%) of the remaining Indemnity Six Month Holdback Amount (including any earnings thereon) less Amount, plus (ii) the aggregate amount of outstanding claims for which indemnification Purchaser has provided a Claim Notice to Sellers in good faith in accordance with Section 10.2 that remain unresolved or have not been demanded previously paid to Purchaser as of such date (which shall remain part of the Applicable Holdback Amount until final resolution of such outstanding Claim Notices) (such amount, the “Twelve Month Holdback Amount”). For the avoidance of doubt, if Purchaser delivers a Claim Notice to Sellers for any Material Claims in accordance with the applicable Required Noticefirst sentence of this Section 10.4(d), then there shall be no disbursement to Sellers of the Twelve Month Holdback Amount. (e) Unless Parent Within ten (10) Business Days of expiration of the Holdback Period, Sellers and Purchaser shall disburse (i) provide the Indemnity Transfer Agent with the applicable Transfer Agent Documentation and (ii) deliver to the Transfer Agent joint written instructions instructing the Transfer Agent to remove the Contract Legend from the number of Purchaser Common Equity equal to (A) the Applicable Holdback Amount Amount, minus (including B) a number of shares of Purchaser Common Equity (calculated at the Current Share Price at the expiration of the Holdback Period) equal to those amounts attributable to any earnings thereonthen- outstanding claims for which Purchaser has provided a Claim Notice to Sellers in good faith in accordance with Section 10.2 that remain unresolved or have not been previously paid to Purchaser as of such date. From and after the end of the Holdback Period, if the Parties reach final agreement or other final non-appealable resolution as to the Damages alleged by Purchaser in one or more Claim Notices that remained unresolved as of the end of the Holdback Period, Sellers’ Representative and Purchaser shall (i) provide the Transfer Agent with the applicable Transfer Agent Documentation and (ii) deliver to the Transfer Agent joint written instructions instructing the Transfer Agent to transfer to Purchaser a number of shares of Purchaser Common Equity (calculated at the Current Share Price) equal to any amounts to which Purchaser is entitled upon resolution of such dispute and remove the Contract Legend on the remaining shares of Purchaser Common Equity that were held back in respect of the applicable claim pursuant to this Section 3.4 and except as otherwise mutually agreed upon by Parent and Shareholder in writing, Parent shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgment10.4.

Indemnity Holdback. A portion of (a) In the Purchase Price event that Closing occurs, the Escrow Agent shall hold in the amount of $200,000 (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (the “Holdback Account”). The Indemnity Holdback Amount shall be applied escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%) of the Unadjusted Purchase Price (the “Initial Holdback Amount” and as may be reduced pursuant to this Agreement Section 11.7, the “Holdback Amount”). If Purchaser delivers a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to pay amounts owing or payable indemnification by the Sellers in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this Agreement ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non- appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Shareholder Sellers prior to Parent with any remaining funds the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be distributed due or likely to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows: due hereunder (a) In or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim for indemnification or claims have been fully resolved pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant final non- appealable judgment or final settlement with respect to Section 7.4 of this Agreementsuch dispute. (b) In Subject to Section 11.7(a), if Purchaser has not delivered on or prior to 5:00 p.m. Central Standard Time on the event that date ninety (90) days after the Closing (“Initial Holdback Deadline”) one or more Claim Notices asserting unresolved or disputed claims for indemnification under Section 11.2(b) that, individually or in the aggregate and subject to and after giving effect to the limitations set forth in Section 11.4, equal or exceed the sum of fifteen percent (15%) of the Unadjusted Purchase Price, then the Parties shall within one (1) Business Day after the Initial Holdback Deadline execute and deliver to the Escrow Agent joint written instructions instructing the Escrow Agent to disburse to Sellers an amount equal to the remainder of (i) Shareholder shall not have furnished to Parent a written objection all amounts held in escrow by the Escrow Agent pursuant to the Required Notice within thirty (30) calendar days of receipt thereof or Escrow Agreement minus (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to five percent (5%) of the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received a final, non-appealable order of any court of competent jurisdiction (the “Court”) relating to the disposition of such Claim (a “Final Judgment”), Parent shall disburse to the Parent Indemnified Party the entire amount determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent and Shareholder, as the case may beUnadjusted Purchase Price. (c) On March 31, 2008 (the “Initial Disbursement Date”Subject to Section 11.7(a), so long as there is no Claim then pending, Parent shall disburse one half of the Indemnity Holdback Amount (including any earnings thereon) if Purchaser has not delivered on or prior to Shareholder. If there is a Claim pending 5:00 p.m. Central Standard Time on the date 180 days after Initial Disbursement DateHoldback Deadline (“Final Holdback Deadline”) one or more Claim Notices asserting unresolved or undisputed claims for indemnification under Section 11.2(b) that, Parent individually or in the aggregate and subject to and after giving effect to the limitations set forth in Section 11.4, do not exceed the amount then held in escrow by the Escrow Agent pursuant to the Escrow Agreement, then, then the Parties shall within one (1) Business Day after the Initial Holdback Deadline execute and deliver to the Escrow Agent joint written instructions instructing the Escrow Agent to disburse to Shareholder the Sellers an amount equal to one-half the remainder of (i) all amounts held in escrow by the Indemnity Holdback Amount (including any earnings thereon) less Escrow Agent pursuant to the Escrow Agreement minus (ii) the aggregate amount of such asserted unresolved claims for which indemnification has been demanded in the applicable Required Noticeindemnification. (d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) pursuant to this Section 3.4 and except as otherwise mutually agreed upon by Parent and Shareholder in writing, Parent shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgment.

Indemnity Holdback. A portion of (a) In the Purchase Price event that Closing occurs, the Escrow Agent shall hold in the amount of $200,000 (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (the “Holdback Account”). The Indemnity Holdback Amount shall be applied escrow in a separate segregated account, in accordance with the terms of the Escrow Agreement, an amount equal to twenty percent (20%) of the Unadjusted Purchase Price (the “Initial Holdback Amount” and as may be reduced pursuant to this Agreement Section 11.7, the “Holdback Amount”). If Purchaser delivers a Claim Notice on or before the end of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, and Sellers do not dispute such claim, Purchaser shall be entitled to pay amounts owing or payable indemnification by the Sellers in accordance with ARTICLE 11, including the right to receive from the Holdback Amount funds in an amount equal to the amount of the indemnity claim for which Purchaser is entitled under this Agreement ARTICLE 11. If, however, Sellers dispute any such claim, Purchaser shall not be entitled to receive any amount from the Holdback Amount with respect to such claim prior to final non-appealable judgment or final settlement with respect to such dispute. To the extent there exists any indemnity claim pursuant to ARTICLE 11 that is subject to a valid Claim Notice, but not satisfied in full by Shareholder Sellers prior to Parent with any remaining funds the expiration of the Initial Holdback Deadline or the Final Holdback Deadline, as applicable, an amount equal to the maximum possible amount of such claim or claims reasonably believed by the parties hereto to be distributed due or likely to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows: due hereunder (a) In or, in the event of a dispute between the parties with respect thereto, the higher of the two estimates) will be withheld from the remaining Holdback Amount and will continue to be held until such claim for indemnification or claims have been fully resolved pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant final non-appealable judgment or final settlement with respect to Section 7.4 of this Agreementsuch dispute. (b) In Subject to Section 11.7(a), if Purchaser has not delivered on or prior to 5:00 p.m. Central Standard Time on the event that date ninety (90) days after the Closing (“Initial Holdback Deadline”) one or more Claim Notices asserting unresolved or disputed claims for indemnification under Section 11.2(b) that, individually or in the aggregate and subject to and after giving effect to the limitations set forth in Section 11.4, equal or exceed the sum of fifteen percent (15%) of the Unadjusted Purchase Price, then the Parties shall within one (1) Business Day after the Initial Holdback Deadline execute and deliver to the Escrow Agent joint written instructions instructing the Escrow Agent to disburse to Sellers an amount equal to the remainder of (i) Shareholder shall not have furnished to Parent a written objection all amounts held in escrow by the Escrow Agent pursuant to the Required Notice within thirty (30) calendar days of receipt thereof or Escrow Agreement minus (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to five percent (5%) of the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received a final, non-appealable order of any court of competent jurisdiction (the “Court”) relating to the disposition of such Claim (a “Final Judgment”), Parent shall disburse to the Parent Indemnified Party the entire amount determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, or as determined by mutual agreement of Parent and Shareholder, as the case may beUnadjusted Purchase Price. (c) On March 31, 2008 (the “Initial Disbursement Date”Subject to Section 11.7(a), so long as there is no Claim then pending, Parent shall disburse one half of the Indemnity Holdback Amount (including any earnings thereon) if Purchaser has not delivered on or prior to Shareholder. If there is a Claim pending 5:00 p.m. Central Standard Time on the date 180 days after Initial Disbursement DateHoldback Deadline (“Final Holdback Deadline”) one or more Claim Notices asserting unresolved or undisputed claims for indemnification under Section 11.2(b) that, Parent individually or in the aggregate and subject to and after giving effect to the limitations set forth in Section 11.4, do not exceed the amount then held in escrow by the Escrow Agent pursuant to the Escrow Agreement, then, then the Parties shall within one (1) Business Day after the Initial Holdback Deadline execute and deliver to the Escrow Agent joint written instructions instructing the Escrow Agent to disburse to Shareholder the Sellers an amount equal to one-half the remainder of (i) all amounts held in escrow by the Indemnity Holdback Amount (including any earnings thereon) less Escrow Agent pursuant to the Escrow Agreement minus (ii) the aggregate amount of such asserted unresolved claims for which indemnification has been demanded in the applicable Required Noticeindemnification. (d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) pursuant to this Section 3.4 and except as otherwise mutually agreed upon by Parent and Shareholder in writing, Parent shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgment.

Indemnity Holdback. A portion of (a) On the Purchase Price in date that is thirty (30) months following the amount of $200,000 Closing Date (the “Indemnity Holdback Amount”) shall be deposited by Parent into an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (the “Holdback AccountRelease Date”). The Indemnity Holdback Amount , the Member Representative and Buyer shall be applied jointly instruct the Escrow Agent to release to Member Representative, in accordance with the terms Escrow Agreement, One Hundred percent (100%) of this Agreement to pay amounts owing or payable under this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The the Indemnity Holdback Amount shall be applied by Parent as follows: (a) In less the event aggregate amount of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant to Section 7.4 of this Agreement. (b) In the event that (i) Shareholder shall not have furnished to Parent a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount or (y) Parent and Shareholder shall have received a final, non-appealable order of any court of competent jurisdiction funds (the “CourtRetained Amount”) relating for which a good faith Claim from any Buyer Indemnitee has been delivered prior to the disposition Indemnity Holdback Release Date asserting that such Buyer Indemnitee is entitled to indemnification under this Article VII that has not been resolved. The Escrow Agent shall retain the Retained Amount in the Indemnity Holdback Escrow Account until such time as any pending Buyer Claims are resolved in accordance with this Article VII, and thereafter, the Buyer and Member Representative shall promptly jointly instruct the Escrow Agent to release the applicable portion of such Claim (a “Final Judgment”), Parent shall disburse the Retained Amount to the Parent Indemnified Party the entire amount determined to be owed to the Parent Indemnified Part as set forth in the Required Notice, the Final Judgment, Buyer or as determined by mutual agreement of Parent and ShareholderMember Representative, as the case may be. (b) At any time prior to the Indemnity Holdback Release Date that a Buyer Claim is resolved pursuant to this Article VII in favor of a Buyer Indemnitee, the Member Representative and Buyer shall promptly jointly instruct the Escrow Agent to release to such Buyer Indemnitee the amount of Losses pertaining to such resolved Buyer Claim in accordance with the Escrow Agreement. (c) On March 31, 2008 (the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse one half of The Parties hereby acknowledge and agree that any interest accrued on the Indemnity Holdback Amount (including any earnings thereon) shall be distributed to Shareholder. If there is a Claim pending on the Initial Disbursement Date, Parent shall disburse to Shareholder an amount equal to one-half of (i) Members in accordance with the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required NoticeOwnership Schedule. (d) On March 31For the avoidance of doubt, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse release of the Indemnity Holdback Amount (including Amount, or any earnings thereon) pursuant portion thereof, shall not in any way reduce, diminish or impair the ability of any Indemnified Party to this Section 3.4 and except assert a claim for indemnification thereafter as otherwise mutually agreed upon expressly permitted or authorized by Parent and Shareholder in writing, Parent shall continue to hold the Indemnity Holdback Amount (including any earnings thereon) in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgmentthis Agreement.

Indemnity Holdback. A The “Holdback” shall consist of Two Million Dollars ($2,000,000) of the Merger Consideration to be withheld by the Parent at the Closing and, to the extent all or any portion of the Purchase Price in Holdback becomes payable to the amount Caroderm shareholders pursuant to the provisions of $200,000 (the “Indemnity Holdback Amount”) this Section 7.3.3, shall be deposited by Parent into paid to the Caroderm shareholders, on a pro rata basis, as an account mutually agreed to by Shareholder and Parent at RBC Centura Bank or any other mutually agreeable financial institution (element of the “Holdback Account”)Merger Consideration. The Indemnity Holdback Amount Nothing contained in this Agreement shall be applied in accordance with the terms construed to limit any rights of this Agreement to pay amounts owing or payable under this Agreement by Shareholder to Parent with any remaining funds to be distributed to Shareholder. The Indemnity Holdback Amount shall be applied by Parent as follows: (a) In the event of a claim for indemnification pursuant to Article VII of this Agreement by a Parent Indemnified Party hereunder (a “Claim”), Parent shall give Shareholder the Required Notice pursuant to Section 7.4 of this Agreement. (b) In the event that (i) Shareholder shall not have furnished to Parent a written objection to the Required Notice within thirty (30) calendar days of receipt thereof or (ii) Shareholder shall have delivered to Parent, Shareholder’s written objection to the Required Notice and either (x) Shareholder and Parent shall have, subsequent to the giving of such notice, mutually agreed that Shareholder is obligated to indemnify the Parent Indemnified Parties for a specified amount full indemnification or (y) Parent and Shareholder shall have received a final, non-appealable order of otherwise against any court of competent jurisdiction (the “Court”) relating Caroderm shareholder severally with respect to the disposition failure of such Claim (a “Final Judgment”)Caroderm shareholder to have good, Parent valid and marketable title to any Caroderm Shares held by holder as represented herein, free and clear of all Liens or to have the full right, capacity and authority to vote all of such Caroderm Shares in favor of the Merger and any other transaction contemplated by this Agreement; provided that in no event shall disburse any Caroderm shareholder have liability to the Parent Indemnified Parties for Losses in excess of the Merger Consideration payable to such Caroderm shareholder. On expiration of one year from the date hereof, One Million Dollars ($1,000,000) of the Holdback less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. On expiration of the Survival Period, all remaining amounts in the Holdback that have not been used to compensate a Parent Indemnified Party as provided in this Article VII or which do not constitute a Reserve Amount, shall be distributed to the Caroderm shareholders, pro rata in proportion to the amount each was entitled to receive of the Merger Consideration. Notwithstanding the foregoing, if, prior to the first anniversary of the Closing Date, the Shareholders shall have delivered to Purchaser from each of the holders of Caroderm Shares a consent to the Merger (in the form delivered by the Shareholders to Purchaser in connection with the approval of the Merger), then, on the first anniversary of the Closing Date, the entire amount determined Holdback, less any (i) amounts used to compensate a Parent Indemnified Party as provided in this Article VII and (ii) amounts constituting a Reserve Amount at such time, shall be owed distributed to the Caroderm shareholders. On resolution of the claim underlying any Reserve Amount or on expiration of Survival Period without a formal proceeding having been filed against the Parent Indemnified Part Parties with respect to the underlying claim, any Reserve Amounts shall be distributed to the shareholders of Caroderm in the same proportion as set forth in above. On any distribution from the Required NoticeHoldback, interest or other earnings accrued on the Final Judgment, or as determined by mutual agreement of Holdback amount shall be allocated between Parent and Shareholder, as the case may be. (c) On March 31, 2008 (shareholders of Caroderm based on the “Initial Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse one half respective portions of the Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Initial Disbursement Date, Parent shall disburse to Shareholder an amount equal to one-half of (i) the Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (d) On March 31, 2009 (the “Final Disbursement Date”), so long as there is no Claim then pending, Parent shall disburse the remaining Indemnity Holdback Amount (including any earnings thereon) to Shareholder. If there is a Claim pending on the Final Disbursement Date, Parent shall disburse to Shareholder an amount equal to (i) the remaining Indemnity Holdback Amount (including any earnings thereon) less (ii) the amount for which indemnification has been demanded in the applicable Required Notice. (e) Unless Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) otherwise received by them pursuant to this Section 3.4 and except section. Notwithstanding the foregoing, any two or more Caroderm shareholders may agree to allocate as otherwise mutually agreed upon between themselves any payments to be received by such shareholders from Parent and Shareholder in writing, Parent shall continue make payment according to hold such allocation if Parent is instructed to do so in a writing signed by the Indemnity Holdback Amount (including any earnings thereon) Caroderm shareholders in the Holdback Account until receipt by Parent of a Final Judgment. Upon receipt by Parent of a Final Judgment, Parent shall disburse the Indemnity Holdback Amount (including any earnings thereon) as provided in such Final Judgmentquestion.