Common use of Payments from the Escrow Account Clause in Contracts

Payments from the Escrow Account. (a) A Parent Indemnified Party shall initiate a claim against the Escrow Fund by delivering to the Member Representative, with a copy to the Depository Agent, a written notice (an "Indemnification Notice"), which Indemnification Notice shall: (i) state that such Parent Indemnified Party is a Parent Indemnified Party under the Merger Agreement and has paid or incurred one or more Losses that satisfy the indemnification provisions set forth in Section 8.2 of the Merger Agreement (each, a "Covered Loss"); (ii) state in good faith the aggregate amount (the "Indemnification Amount") of each such Covered Loss; and (iii) specify in reasonable detail the nature and basis of each such Covered Loss. (b) If the Member Representative shall object in good faith to any portion of any Indemnification Amount specified in any Indemnification Notice, the Member Representative shall, within thirty (30) calendar days after delivery by the Parent Indemnified Party to the Member Representative of such Indemnification Notice, deliver to the Depository Agent (with a copy to the Parent Indemnified Party) a certificate, executed by the Member Representative (a "Certificate of Objections"): (i) specifying each such amount to which the Member Representative objects in good faith; and (ii) specifying in reasonable detail the nature and basis for each such good faith objection. Promptly upon receipt of a Certificate of Objections, the Depository Agent shall deliver a copy of such Certificate of Objections to the Parent Indemnified Party. (c) If the Depository Agent shall not have received a Certificate of Objections objecting to an Indemnification Amount within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice specifying such Indemnification Amount, the Holders and the Member Representative shall be deemed to have acknowledged that the Indemnification Amount claimed on such Indemnification Notice is correct and final and the Depository Agent shall thereafter transfer to such Parent Indemnified Party out of the Escrow Account (such transfer to be applied and deducted from the Escrow Fund pro rata in accordance with each Holder's Pro Rata Share of the Escrow Fund) such number of Escrowed Shares with an aggregate value equal to the Indemnification Amount set forth in the Indemnification Notice, together with any Proceeds attributable to such transferred Escrowed Shares. For purposes of this Agreement, each Escrowed Share shall be deemed to have a value equal to the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like). (d) If the Depository Agent receives, within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice, a Certificate of Objections objecting to the Indemnification Amount specified in such Indemnification Notice, the amount so objected to shall be held by the Depository Agent and shall not be released from the Escrow Account, except in accordance with either: (i) written instructions executed by Parent and the Member Representative, or (ii) written instructions from the Parent Indemnified Party and the final judgment of the arbitrator having jurisdiction over the matters relating to the claim, as provided in Section 7, after which time the Depository Agent shall cause: (A) a transfer to the Parent Indemnified Party in the manner set forth in Section 6(c); provided, that all references to the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the written instruction or judgment, as the case may be; and (B) in the event such written instruction or judgment is delivered following the First Release Date (as defined below), a distribution to the Holders in an aggregate amount equal to the amount so objected to and not released pursuant to (A) above (the "Holdback Release"). Any Holdback Release shall be distributed to each Holder, in an amount equal to the product of the Holdback Release multiplied by such Holder's Pro Rata Share of the Escrow Fund, together with any Proceeds attributable to such released Escrowed Shares. (e) Subject to Section 11, on the earlier of (i) April 1, 2007 or (ii) such date as shall have been specified in a joint written notice of Parent and the Member Representative to the Depository Agent (the "First Release Date"), the Depository Agent shall distribute a number of Escrowed Shares that have a value equal to the amount, if any, by which the value of the Escrowed Shares at such date (valued at the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)), exceeds the First Reserved Amount (the "First Released Amount"). The First Released Amount shall be transferred to each Holder, in an amount equal to the product of the

Payments from the Escrow Account. (a) A Parent Indemnified Party shall initiate Upon receipt of a claim against written certification of in Authorized Officer of Telesource that there is an amount in the Escrow Fund Account in excess of tie balance required by delivering Section 10 hereof and that CUC is entitled to be paid such excess amount from the Escrow Account, the Agent shall release from the Escrow Account and pay to CUC an amount which equals such excess amount. a. Upon receipt of written certification of an Authorized Officer of Telesource that CUC is no longer obligated to Telesource under the Contract or any of the Notes, the Agent shall distribute the balance of the Escrow Account in the manner described in the following sentence. The Agent shall distribute to Telesource an amount equal to the Member Representative, with a copy to the Depository Agent, a written notice (an "Indemnification Notice"), which Indemnification Notice shall: lesser of (i) state that such Parent Indemnified Party is a Parent Indemnified Party under the Merger Agreement and has paid balance of tie Escrow Account or incurred one or more Losses that satisfy the indemnification provisions set forth in Section 8.2 of the Merger Agreement (each, a "Covered Loss"); (ii) state in good faith the aggregate amount (certified by an Authorized Officer of Telesource as the "Indemnification Amount") sum of each such Covered Lossall outstanding and unpaid obligations of CUC to Telesource pursuant to the Contract and the Notes; and (iii) specify in reasonable detail the nature and basis Agent shall distribute to CUC the remainder, if any, of each such Covered Lossthe balance of the Escrow Account. b. If the Agent has not received notice described in the foregoing paragraph (b) on or before ________________ the balance of the Escrow Account shall be distributed by the Agent to CUC. c. Any payments or distributions required to be made pursuant to this Section 13 shall be made by the Agent five (5) business days after written notification requesting such payment, or at such later date as may be requested by the party entitled to receive such payment and approved by an Authorized Officer of Telesource. The Agent may, if so requested by the party receiving the distribution, distribute securities in which the funds have been invested in lieu of disbursing cash. d. If the Member Representative shall object Agent receives a certified notice of an Authorized Officer of Telesource that a CUC Event of Default has occurred under the Contract and that, as a result of such CUC Event of Default, Telesource is entitled to a remedy described in good faith to any portion of any Indemnification Amount specified the Contract or in any Indemnification Noticeof the Notes, the Member Representative shall, within thirty (30Agent shall not make any distribution to CUC pursuant to Section 13(a) calendar days after delivery by the Parent Indemnified Party hereof until such time as an Authorized Officer of Telesource gives written notice to the Member Representative Agent that such CUC Event of such Indemnification Notice, deliver Default has been timely remedied. e. Notwithstanding any provision herein contained to the Depository Agent (with a copy to contrary, at any time, upon the Parent Indemnified Party) a certificate, executed by the Member Representative (a "Certificate of Objections"): (i) specifying each such amount to which the Member Representative objects in good faith; and (ii) specifying in reasonable detail the nature and basis for each such good faith objection. Promptly upon receipt of a Certificate written certification and request signed by an Authorized Officer of ObjectionsTelesource, the Depository Agent shall deliver a copy of such Certificate of Objections to distribute the Parent Indemnified Party. (c) If the Depository Agent shall not have received a Certificate of Objections objecting to an Indemnification Amount within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice specifying such Indemnification Amount, the Holders and the Member Representative shall be deemed to have acknowledged that the Indemnification Amount claimed on such Indemnification Notice is correct and final and the Depository Agent shall thereafter transfer to such Parent Indemnified Party out balance of the Escrow Account (or any portion thereof) in accordance with such transfer request. f. In the event that, in accordance with Section 8 hereof, no successor agent has been appointed by Telesource, the balance of the Escrow Account shall be delivered by the Agent to Telesource or, in Telesource's name, to such financial institution as shall be selected by Telesource, as provided for in Section 8 hereof. g. The Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document furnished to it, not only as to the document's due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained which the Agent in good faith believes to be applied genuine and deducted what it purports to be. h. Notwithstanding the terms and provisions of this Section 13, if the Agent shall have been served with or otherwise subjected to a court order, injunction or other process or decree restraining or seeking to restrain the Agent from making any payment from the Escrow Fund pro rata Account required by the terms hereof, such payment shall be made upon, but not prior to, the Agent's receipt of an opinion from its counsel to the effect that a final and unappealable judgment or order has been rendered or issued either terminating the order, injunction or the process or decree restraining the Agent from making payment under this Section 13 or permanently enjoining the Agent from paying out the Escrow Account in accordance with each Holder's Pro Rata Share the terms of the Escrow Fund) such number of Escrowed Shares with an aggregate value equal to the Indemnification Amount set forth in the Indemnification Notice, together with any Proceeds attributable to such transferred Escrowed Shares. this Agreement. i. For purposes of this Agreement, each Escrowed Share the term "business day" shall be deemed to have mean any day other than a value equal to Saturday, Sunday, public holiday or bank holiday (or the Parent Common Stock Price (as such amount may be appropriately adjusted equivalent for stock splits, stock dividends, stock combinations, and banks generally) under the like). (d) If the Depository Agent receives, within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice, a Certificate of Objections objecting to the Indemnification Amount specified in such Indemnification Notice, the amount so objected to shall be held by the Depository Agent and shall not be released from the Escrow Account, except in accordance with either: (i) written instructions executed by Parent and the Member Representative, or (ii) written instructions from the Parent Indemnified Party and the final judgment laws of the arbitrator having jurisdiction over the matters relating to the claim, as provided in Section 7, after which time the Depository Agent shall cause: (A) a transfer to the Parent Indemnified Party in the manner set forth in Section 6(c); provided, that all references to the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the written instruction or judgment, as the case may be; and (B) in the event such written instruction or judgment is delivered following the First Release Date (as defined below), a distribution to the Holders in an aggregate amount equal to the amount so objected to and not released pursuant to (A) above (the "Holdback Release"). Any Holdback Release shall be distributed to each Holder, in an amount equal to the product Commonwealth of the Holdback Release multiplied by such Holder's Pro Rata Share of the Escrow Fund, together with any Proceeds attributable to such released Escrowed Shares. (e) Subject to Section 11, on the earlier of (i) April 1, 2007 or (ii) such date as shall have been specified in a joint written notice of Parent and the Member Representative to the Depository Agent (the "First Release Date"), the Depository Agent shall distribute a number of Escrowed Shares that have a value equal to the amount, if any, by which the value of the Escrowed Shares at such date (valued at the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)), exceeds the First Reserved Amount (the "First Released Amount")Northern Marinas Islands. The First Released Amount shall be transferred to each Holder, in an amount equal to the product of the218

Payments from the Escrow Account. (a) A If the Escrow Agent receives a certificate (or any number of counterparts thereof) signed by both Parent Indemnified Party and the Stockholder Representative and directing the Escrow Agent as to delivery of all or any part of the Escrow Shares to Parent and/or the Designated Stockholders (or any other Persons) (a “Joint Certificate”), the Escrow Agent shall initiate immediately deliver such Escrow Shares from the Escrow Account as directed in such Joint Certificate. (b) Subject to Section 11.01 of the Merger Agreement, if at any time (or from time to time), Parent wishes to make a claim against the Escrow Fund by delivering to the Member Representative, with a copy to the Depository Agent(each, a written notice (an "Indemnification Notice"), which Indemnification Notice shall: (i“Parent Claim”) state that such Parent Indemnified Party is a Parent on behalf of itself or any other Indemnified Party under the Merger Agreement and has paid or incurred one or more Losses that satisfy the indemnification provisions set forth in Section 8.2 11.02 of the Merger Agreement (eachcollectively, a "Covered Loss"); (iithe “Parent Indemnitees”) state against the Escrow Shares for which it, acting in good faith faith, reasonably believes it is (or they are) entitled to recovery under Article 11 of the aggregate Merger Agreement, Parent shall deliver to the Escrow Agent and the Stockholder Representative a certificate signed by Parent (an “Indemnity Certificate”). Parent may make a Parent Claim in respect of an amount (of reasonably anticipated Damages in advance of the "Indemnification Amount") actual incurrence of each such Covered Loss; Damages, and (iii) specify , in reasonable detail the nature and basis event such Damages are properly recoverable by a Parent Indemnitee in respect of each a claim for indemnification under Section 11.02 of the Merger Agreement, payments will be made in respect of such Covered LossParent Claim as such Damages are actually incurred. (bc) Parent shall deliver to the Stockholder Representative a copy of each Indemnity Certificate simultaneously with its delivery to the Escrow Agent. If (pursuant to the Member applicable provisions of the Merger Agreement) the Stockholder Representative shall object objects in good faith to any portion Parent’s calculation of the amount or entitlement to payment of any Indemnification Amount specified amount, stated in any Indemnification NoticeIndemnity Certificate (a “Contested Claim”), the Member Stockholder Representative shall, within thirty (30) calendar days ten Business Days after delivery by the Parent Indemnified Party to the Member Representative receipt of such Indemnification NoticeIndemnity Certificate, deliver to the Depository Escrow Agent (with a copy to the and Parent Indemnified Party) a certificate, executed by the Member Stockholder Representative (a "Certificate “Notice of Objections"): Dispute”), specifying (i) specifying each such amount Contested Claim to which the Member Stockholder Representative objects in good faith; and and (ii) specifying in reasonable detail the nature and basis for each such objection (provided that no such notice delivered in good faith objectionby the Stockholder Representative shall fail to be a “Notice of Dispute” hereunder by virtue of any failure to comply with such specifications). Promptly upon receipt of a Certificate of Objections, the Depository Agent shall deliver a copy of such Certificate of Objections to the Parent Indemnified Party. (c) If the Depository Agent shall not have received a Certificate of Objections objecting to an Indemnification Amount within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice specifying such Indemnification Amount, the Holders and the Member The Stockholder Representative shall be deemed to have acknowledged that the Indemnification Amount claimed on such Indemnification Notice is correct and final agreed with (and the Depository Agent shall thereafter transfer to such Parent Indemnified Party out of the Escrow Account (such transfer to be applied and deducted from the Escrow Fund pro rata in accordance with each Holder's Pro Rata Share of the Escrow Fund) such number of Escrowed Shares with an aggregate value equal to the Indemnification Amount set forth in the Indemnification Notice, together with any Proceeds attributable to such transferred Escrowed Shares. For purposes of this Agreement, each Escrowed Share parties hereto shall be deemed to have be bound by) all items and matters contained in a value equal Indemnity Certificate, except to the extent there is an objection to any such item or matter in the Notice of Dispute. Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)Stockholder Representative shall negotiate in good faith and each shall use their respective commercially reasonable efforts to agree upon the rights of the respective parties with respect to any Contested Claim. (d) If the Depository Escrow Agent shall not have received a Notice of Dispute within ten Business Days (the “Disagreement Period”) of delivery to the Escrow Agent of an Indemnity Certificate, the Escrow Agent shall deliver to Parent (or to such Person as otherwise directed in such Indemnity Certificate) Escrow Shares with a value (based on the Market Value and calculated in accordance with the Merger Agreement) equal to the amount of the Parent Claim in such Indemnity Certificate. (e) If the Escrow Agent receives, within thirty (30) calendar days ten Business Days after delivery to the Member Representative Escrow Agent of an Indemnification NoticeIndemnity Certificate, a Certificate Notice of Objections Dispute objecting to the Indemnification Amount any matter specified in such Indemnification Noticethat Indemnity Certificate, the amount so objected to shall be held by the Depository Escrow Agent and shall not be released from the Escrow AccountAccount (but the remainder of the amount claimed, except if any, shall be paid or delivered by the Escrow Agent to Parent (or to such Person as otherwise directed in such Indemnity Certificate), except, with respect to the amount as to which the Stockholder Representative has so objected, in accordance with either: (i) a written instructions settlement agreement executed by Parent and the Member Stockholder Representative, ; or (ii) written instructions from the Parent Indemnified Party and the final judgment a final, non-appealable decision of the arbitrator having a court of competent jurisdiction over the matters relating to the claim(either of (i) or (ii), as provided in Section 7a “Final Determination”), after which time the Depository Escrow Agent shall cause: (A) a transfer to Parent (or to such Person as otherwise directed in such Indemnity Certificate) out of the Parent Indemnified Party Escrow Account as soon as practicable a number of Escrow Shares with a value (based on the Market Value and calculated in accordance with the manner set forth in Section 6(c); provided, that all references to the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the written instruction or judgment, as the case may be; and (BMerger Agreement) in the event such written instruction or judgment is delivered following the First Release Date (as defined below), a distribution to the Holders in an aggregate amount equal to the amount so objected to and not released pursuant to (A) above (set forth in the "Holdback Release"). Any Holdback Release shall be distributed to each Holder, in an amount equal to the product of the Holdback Release multiplied by such Holder's Pro Rata Share of the Escrow Fund, together with any Proceeds attributable to such released Escrowed SharesFinal Determination. (ef) Subject Notwithstanding any survival or time limitations set forth in the Merger Agreement with respect to any given Parent Claim, Parent shall be entitled to maintain and prove such Parent Claim that has been set forth in an Indemnity Certificate delivered pursuant to Section 11, 1.05(b) on or before the earlier of (i) April 1, 2007 or (ii) such date as shall have been specified in a joint written notice of Parent and the Member Representative to the Depository Agent (the "First Release Date"), the Depository Agent shall distribute a number of Escrowed Shares that have a value equal to the amount, if any, by which the value end of the Escrowed Shares at applicable survival or time limitation period until such date (valued claim is fully and finally resolved even if such resolution does not occur until after the end of such survival or time limitation period. At any time before or after the end of an applicable survival or time limitation period, Parent shall be entitled to deliver a revised Indemnity Certificate in accordance with Section 1.05(b) with respect to any Parent Claim setting forth the recalculated amount of Damages incurred or that the relevant Parent Indemnitee reasonably anticipates it or other Parent Indemnitees may incur with respect to such Parent Claim, at the Parent Common Stock Price (as time of such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)), exceeds the First Reserved Amount (the "First Released Amount")delivery. The First Released Amount shall be transferred to each Holder, in an amount equal to the product of theFor purposes

Payments from the Escrow Account. (a) A Parent Indemnified Party shall initiate a claim against the Escrow Fund by delivering If, at any time on or prior to the Member RepresentativeDistribution Date (as defined below), with a copy the Purchaser shall deliver (the date of such delivery being the "Escrow Notice Delivery Date") to the Depository AgentSellers' Representative a certificate of the Purchaser, executed by an authorized officer of the Purchaser (a written notice (an "Indemnification NoticePurchaser's Certificate"), which Indemnification Notice Purchaser's Certificate shall: (i) state that such Parent Indemnified Party the Purchaser is a Parent Indemnified Party entitled to indemnification under the Merger Agreement and has paid or incurred one or more Losses that satisfy the indemnification provisions set forth in Section 8.2 11.2(b) of the Merger Agreement (each, a "Covered Loss")Acquisition Agreement; (ii) state in good faith the aggregate amount (the "Indemnification Amount") of each such Covered Loss; and (iii) specify in reasonable detail the nature and basis amount (or if not yet determined, a good faith estimate of the amount) of each individual item for which indemnification is sought (each being an "Indemnification Item"); and (iii) state the aggregate amount (or if not yet determined, a good faith estimate of the amount) of all such Covered LossIndemnification Items. For purposes of this Agreement, the "Distribution Date" shall be December 31, 1999. (b) If the Member Representative Sellers' Representative, acting on behalf of the Sellers, shall object in good faith to any portion of amount claimed in connection with any Indemnification Amount Item specified in any Indemnification NoticePurchaser's Certificate, the Member Representative Sellers' Representative, acting on behalf of the Sellers, shall, within thirty (30) calendar 20 business days after delivery by the Parent Indemnified Party to the Member Representative of such Indemnification NoticeEscrow Notice Delivery Date, deliver to the Depository Agent (with a copy to the Parent Indemnified Party) Purchaser a certificate, executed by the Member Sellers' Representative (a "Certificate of ObjectionsSellers' Certificate"): ), (i) specifying each such amount to which the Member Representative objects in good faith; and Sellers object and (ii) specifying in reasonable detail the nature and basis for each such good faith objection. Promptly upon receipt of If the Purchaser shall not have received a Sellers' Certificate of Objectionsobjecting to the amount claimed with respect to an Indemnification Item within 20 business days after the Escrow Notice Delivery Date, the Depository Agent Sellers shall deliver a copy be deemed to have acknowledged the correctness of the amount (the "Claim Amount") claimed on such Purchaser's Certificate with respect to such Indemnification Item, and the Sellers' Representative shall promptly thereafter (but not before the earlier of Objections (x) the date upon which all Escrowed Shares have been sold and converted into cash and (y) December 31, 1998) direct the Escrow Agent, in writing, to transfer to the Parent Indemnified PartyPurchaser Escrowed Cash in an amount equal to the lesser of (x) the Claim Amount and (y) the aggregate amount of the then remaining Escrowed Cash. (c) If the Depository Agent shall not have received a Certificate of Objections objecting to an Indemnification Amount Purchaser receives, within thirty (30) calendar 20 business days after delivery to the Member Representative by it of an Indemnification Notice specifying such Indemnification Amount, the Holders and the Member Representative shall be deemed to have acknowledged that the Indemnification Amount claimed on such Indemnification Notice is correct and final and the Depository Agent shall thereafter transfer to such Parent Indemnified Party out of the Escrow Account (such transfer to be applied and deducted from the Escrow Fund pro rata in accordance with each Holdera Purchaser's Pro Rata Share of the Escrow Fund) such number of Escrowed Shares with an aggregate value equal to the Indemnification Amount set forth in the Indemnification Notice, together with any Proceeds attributable to such transferred Escrowed Shares. For purposes of this Agreement, each Escrowed Share shall be deemed to have a value equal to the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like). (d) If the Depository Agent receives, within thirty (30) calendar days after delivery to the Member Representative of an Indemnification NoticeCertificate, a Sellers' Certificate of Objections objecting to the any amount claimed with respect to any Indemnification Amount Item specified in such Indemnification NoticePurchaser's Certificate, the amount so objected to shall be held by the Depository Escrow Agent and shall not be released from the Escrow Account, except in accordance with either: either (i) written instructions executed by Parent each of the Purchaser and the Member Representative, or Sellers' Representative or (ii) written instructions from the Parent Indemnified Party and the final nonappealable judgment of the arbitrator a court having jurisdiction over the matters relating to the claimclaim by the Purchaser for indemnification from the Sellers. Following the receipt by the Escrow Agent of such written instructions or final judgment, as provided in Section 7, after which time the Depository Escrow Agent shall cause: (A) a promptly thereafter transfer to the Parent Indemnified Party in the manner set forth in Section 6(c); provided, that all references to the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the written instruction or judgment, as the case may be; and (B) in the event such written instruction or judgment is delivered following the First Release Date (as defined below), a distribution to the Holders in an aggregate amount equal to the amount so objected to and not released pursuant to (A) above (the "Holdback Release"). Any Holdback Release shall be distributed to each Holder, Purchaser Escrowed Cash in an amount equal to the product lesser of (x) the amount specified in such written instructions or final judgment and (y) the aggregate amount of the Holdback Release multiplied by such Holder's Pro Rata Share then remaining Escrowed Cash. (d) Notwithstanding the limitations set forth in Section 4(a) of this Agreement, following the Distribution Date, the Purchaser shall be entitled to assert claims against the Escrow Fund, together with any Proceeds attributable to such released Escrowed SharesAccount under this Section 4 in respect of all Losses that were included in determining the Reserved Amount (as defined below). (e) Subject to Section 11On the Distribution Date, on the earlier of (i) April 1, 2007 or (ii) such date as Escrow Agent shall have been specified in a joint written notice of Parent and the Member Representative deliver to the Depository Agent (the "First Release Date")Sellers, the Depository Agent shall distribute a number of then remaining Escrowed Shares that have a value equal to Cash in the amountEscrow Account, if any, by which the value less a portion of the such Escrowed Shares at such date (valued at the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)), exceeds the First Reserved Amount (the "First Released Amount"). The First Released Amount shall be transferred to each Holder, Cash in an amount equal to the product Reserved Amount (as defined below). The "Reserved Amount" shall equal the lesser of the(1) the aggregate of the amounts claimed in all Purchaser's Certificates delivered to the Escrow Agent prior to the Distribution Date (which claims shall not have been resolved on or prior to the Distribution Date) and (2) the aggregate value of the then remaining Escrowed Cash and shall be set forth in such written instructions to the Escrow Agent.

Payments from the Escrow Account. (a) A Parent Indemnified Party shall initiate a claim against the Escrow Fund by delivering If, from time to the Member Representativetime, with a copy to the Depository Agent, a written notice (an "Indemnification Notice"), which Indemnification Notice shall: (i) Purchaser determines that it is entitled to payment pursuant to Section 7.03(a) or Section 7.04 of the Purchase Agreement (an “Indemnity Claim”), Purchaser may request payment from the Escrow Account by giving written notice to the Escrow Agent and Seller (in each case in accordance with the provisions of Section 8 below) of such Indemnity Claim (any written notice of an Indemnity Claim being referred to as an “Indemnity Claim Notice”). Each Indemnity Claim Notice shall clearly state that such Parent a Purchaser Indemnified Party is a Parent Indemnified Party under the Merger Agreement and has paid or incurred one or more Losses that satisfy for which such Person is entitled to indemnification under the indemnification provisions set forth in Section 8.2 Purchase Agreement. The Indemnity Claim Notice shall state the method of computation of such Indemnity Claim and the Merger Agreement (eachamount thereof, a "Covered Loss"); (ii) state in good faith the aggregate amount (the "Indemnification Amount") of each such Covered Loss; and (iii) if ascertainable, shall specify in reasonable detail each individual item of Loss included in such amount, the nature date such item was paid or incurred, and the basis for any anticipated liability, and shall refer to the provisions of each the Purchase Agreement in respect of which such Covered LossIndemnity Claim shall have occurred. It is understood by the parties hereto that the Escrow Agent shall have no duty or obligation to verify or otherwise determine Purchaser’s rights under the Purchase Agreement. (b) If the Member Representative shall object in good faith If, from time to any portion of any Indemnification Amount specified in any Indemnification Noticetime, the Member Representative shall, within thirty (30) calendar days after delivery by the Parent Indemnified Party to the Member Representative of such Indemnification Notice, deliver to the Depository Agent (with a copy to the Parent Indemnified Party) a certificate, executed by the Member Representative (a "Certificate of Objections"): (i) specifying each such amount Seller determines that it is entitled to which payment pursuant to Section 2.07(a), Section 2.07(b)(i)(A) or Section 2.07(b)(i)(C) of the Member Representative objects in good faith; and Purchase Agreement or (ii) specifying Purchaser determines that it is entitled to payment pursuant to Section 2.07(b)(i)(B), Section 2.07(b)(i)(D) or Section 2.07(b)(i)(E) (such claims are referred to herein individually as a “Section 2.07 Claim”), Seller or Purchaser, as the case may be, may request payment from the Escrow Account by giving written notice to the Escrow Agent and the other party (in reasonable detail each case in accordance with the nature provisions of Section 8 below) of such Section 2.07 Claim (any written notice of a Section 2.07 Claim being referred to as an “Section 2.07 Claim Notice”). Each Section 2.07 Claim Notice shall (i) clearly state (A) the method of computation of such Section 2.07 Claim, (B) the amount thereof and (C) the basis for each such good faith objectionthe determination of the Seller or the Purchaser, as the case may be, and (ii) shall either be (A) signed by both Seller and Purchaser or (B) if not signed by both Seller and Purchaser, contain a statement of the Neutral Auditors that supports the determination of the Seller or the Purchaser, as the case may be. Promptly upon receipt of a Certificate of Objections, It is understood by the Depository parties hereto that the Escrow Agent shall deliver a copy of such Certificate of Objections have no duty or obligation to verify or otherwise determine Seller’s or Purchaser’s rights under the Parent Indemnified PartyPurchase Agreement. (c) If Seller shall have the Depository Agent right to dispute any Indemnity Claim against the Escrow Account, and each of Seller and Purchaser shall not have received a Certificate of Objections objecting the right to an Indemnification Amount within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice specifying such Indemnification Amount, the Holders and the Member Representative shall be deemed to have acknowledged that the Indemnification Amount claimed on such Indemnification Notice is correct and final and the Depository Agent shall thereafter transfer to such Parent Indemnified Party out of dispute any Section 2.07 Claim against the Escrow Account during the forty-five (such transfer 45) calendar day period following the date of its receipt of a copy of a Claim Notice (the “Objection Period”) by delivering to be applied and deducted from the Escrow Fund pro rata in accordance with each Holder's Pro Rata Share of Agent and Purchaser written notice (an “Objection Notice”) that Seller disputes the Escrow Fundmatter(s) such number of Escrowed Shares with an aggregate value equal to the Indemnification Amount set forth in the Indemnification such Indemnity Claim Notice or Section 2.07 Claim Notice, together as the case may be, either with any Proceeds attributable to such transferred Escrowed Shares. For purposes of this Agreement, each Escrowed Share shall be deemed to have a value equal respect to the Parent Common Stock Price (validity or the amount of the Indemnity Claim or the Section 2.07 Claim, as such amount the case may be appropriately adjusted for stock splits(or both). The Objection Notice shall include the basis, stock dividendswith reasonable detail, stock combinations, and of the like)objection. (d) If the Depository Agent receives, within thirty (30) calendar days after delivery on or prior to the Member Representative last day of an Indemnification Notice, a Certificate of Objections objecting to the Indemnification Amount specified in such Indemnification NoticeObjection Period, the amount so objected to shall be held by the Depository Escrow Agent and shall has not be released from the Escrow Account, except in accordance with either: received an Objection Notice (i) written instructions executed from Seller with respect to an Indemnity Claim made by Parent and the Member RepresentativePurchaser, or or (ii) written instructions from the Parent Indemnified Party and the final judgment of the arbitrator having jurisdiction over the matters relating to the claim, as provided in Section 7, after which time the Depository Agent shall cause: (A) a transfer to the Parent Indemnified Party in the manner set forth in Section 6(c); provided, that all references to the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the written instruction either Seller or judgmentPurchaser, as the case may be; and (B) , with respect to a Section 2.07 Claim made by the other party, the Indemnity Claim stated in the event related Indemnity Claim Notice or the Section 2.07 Claim specified in the related Section 2.07 Claim Notice shall be conclusively deemed to be approved by Seller and the Purchaser and the Escrow Agent shall on the next banking day thereafter pay to Purchaser, or its designee, or the Seller, or its designee, as the case may be, from the Escrow Amount the amount specified in such written instruction Indemnity Claim Notice or judgment is delivered following Section 2.07 Claim Notice, as the First Release Date case may be. (as defined below), a distribution e) If on or prior to the Holders in last day of the Objection Period, the Escrow Agent shall have received (i) from Seller an aggregate Objection Notice with respect to an Indemnity Claim or portion of an Indemnity Claim made by Purchaser, or (ii) from Seller or Purchaser, as the case may be, an Objection Notice with respect to a Section 2.07 Claim or portion of a Section 2.07 Claim made by Seller or Purchaser, as the case may be, then such Indemnity Claim or Section 2.07 Claim (or disputed portion thereof) shall be deemed to be an “Open Claim”, and the Escrow Agent shall reserve within the Escrow Amount an amount equal to the amount so objected of the Open Claim (which amount for each Open Claim is referred to herein as a “Claim Reserve”). The Escrow Agent shall on the next banking day after receiving an Objection Notice pay to Purchaser, or its designee, or the Seller, or its designee, from the Escrow Amount the amount of the undisputed portion, if any, of such Indemnity Claim or Section 2.07 Claim, as the case may be. (f) The amount constituting the Claim Reserve for each Open Claim shall be paid by the Escrow Agent from the Escrow Account only in accordance with (i) a joint written instruction executed and not released pursuant delivered by Purchaser and Seller directing delivery of the Escrow Account or any portion thereof (a “Joint Instruction”) or (ii) a final non-appealable order of a court of competent jurisdiction or a ruling by an arbitrator, in either case directing delivery of the Claim Reserve or any portion thereof (each a “Final Determination”), together with an opinion of counsel to the effect that such order is final and non-appealable and from a court of competent jurisdiction or that such arbitration ruling is final and non-appealable. (Ag) above On the earlier of such date as (i) Purchaser and Seller deliver a joint written notice to the Escrow Agent authorizing the immediate termination of the Escrow Account, and (ii) the date of the 18th month anniversary of the date hereof (the "Holdback Release"“Indemnification Escrow Amount Termination Date”). Any Holdback Release , the Escrow Agent shall be distributed release from the Escrow Account and deliver to each Holder, in the Seller an amount equal to the product of the Holdback Release multiplied by such Holder's Pro Rata Share of the Escrow Fund, Amount together with any Proceeds attributable to such released Escrowed Shares. (e) Subject to Section 11interest earned thereon, on minus the earlier amount of (i) April 1, 2007 any Indemnity Claim or Claims that have been set forth in an Indemnification Notice pursuant to Article VII of the Purchase Agreement and Section 4(a) hereof and (ii) any distributions of the Escrow Fund in accordance with Section 2.07 of the Purchase Agreement and Section 4(b) hereof (whether or not such date as shall Indemnity Claim(s) or Section 2.07 Claim(s) have been specified in a joint written notice determined to be valid as of Parent and the Member Representative to the Depository Agent (the "First Release Date"), the Depository Agent shall distribute a number of Escrowed Shares that have a value equal to the amount, if any, by which the value of the Escrowed Shares at such date (valued at the Parent Common Stock Price (portion of the Escrow Amount that has not been released to the Seller is referred to as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinationsthe “Escrow Balance”), and the like)), exceeds the First Reserved Amount (the "First Released Amount"). The First Released Amount Escrow Balance shall be transferred retained in escrow pending Adjudication of such Claim(s)in accordance with Section 2.08 of the Purchase Agreement and Section 4(e) hereof. (h) Any amounts to each Holderbe distributed by the Escrow Agent to either Purchaser or Seller shall be distributed by wire transfer of immediately available funds to accounts designated by the recipients. From time to time, in an amount equal to the product Escrow Agent may receive written instructions from Purchaser and Seller regarding the disposition of theall or a portion of the Specific Indemnity Escrow Amount. Once the entire balance of the Specific Indemnity Escrow Amount has been distributed, it shall be terminated.

Payments from the Escrow Account. (a) A Parent Indemnified Party At the Closing, the Parties shall initiate a claim against contemporaneously with such Closing deliver to the Escrow Fund Agent a certificate executed by delivering each of the Parties (a “Joint Certificate”) instructing the Escrow Agent to, and upon receipt by the Escrow Agent of such Joint Certificate, the Escrow Agent shall, promptly transfer all of the Escrow Funds to the Member Representative, with a copy to the Depository Agent, a written notice (an "Indemnification Notice"), which Indemnification Notice shall: (i) state that such Parent Indemnified Party is a Parent Indemnified Party under Paying Agent for deposit into the Merger Agreement and has paid or incurred one or more Losses Fund pursuant to Section 2.02(a) of the Merger Agreement. Each Party agrees that satisfy if the indemnification provisions set forth conditions to such party’s obligations as provided in Section 8.2 Article VII of the Merger Agreement (eachhave been satisfied or waived as contemplated thereby, a "Covered Loss"); (ii) state in good faith it shall deliver such Joint Certificate to the aggregate amount (the "Indemnification Amount") of each such Covered Loss; and (iii) specify in reasonable detail the nature and basis of each such Covered LossEscrow Agent. (b) If the Member Representative Merger Agreement has been terminated by either Purchaser or the Company pursuant to (i) Section 8.01(a) of the Merger Agreement, (ii) Section 8.01(b) of the Merger Agreement, (iii) Section 8.01(c) of the Merger Agreement, (iv) Section 8.01(f) of the Merger Agreement or (v) Section 8.01(g) of the Merger Agreement, the Parties shall deliver to the Escrow Agent a Joint Certificate to that effect, and upon receipt by the Escrow Agent of such Joint Certificate, the Escrow Agent shall promptly distribute directly to Purchaser all of the Escrow Funds. Each Party agrees that if the Merger Agreement has been properly terminated pursuant to Sections 8.01(a), 8.01(b), 8.01(c), 8.01(f) or 8.01(g) of the Merger Agreement, it shall deliver such Joint Certificate to the Escrow Agent. (c) (i) If the Merger Agreement has been terminated by the Company pursuant to Section 8.01(e) or 8.01(i) of the Merger Agreement, the Company shall deliver to the Escrow Agent a certificate executed by the Company to that effect (the “Liquidated Damages Certificate”) and requesting that the Escrow Agent promptly deliver to the Company all of the Escrow Funds in full satisfaction of the obligations of Purchaser to pay liquidated damages pursuant to Section 8.04 of the Merger Agreement, and upon receipt by the Escrow Agent of such Liquidated Damages Certificate, the Escrow Agent shall promptly deliver a copy of such Liquidated Damages Certificate to Purchaser. (ii) If Purchaser shall object to the payment of the Escrow Fund in good faith to any portion of any Indemnification Amount specified in any Indemnification Noticeconnection with the Liquidated Damages Certificate, the Member Representative Purchaser shall, within thirty (30) calendar days after delivery by the Parent Indemnified Party Escrow Agent to the Member Representative Purchaser of such Indemnification NoticeLiquidated Damages Certificate (the “Response Period”), deliver to the Depository Company and the Escrow Agent (with a copy to the Parent Indemnified Party) a certificate, executed by Purchaser (the Member Representative (a "Certificate of Objections"): (i) specifying each such amount to “Response Certificate”), which the Member Representative objects in good faith; and (ii) specifying shall specify in reasonable detail Purchaser’s objection and the nature and basis for each such good faith objection. Promptly upon receipt of a Certificate of Objections, the Depository Agent shall deliver a copy of such Certificate of Objections to the Parent Indemnified Party. (ciii) If the Depository Escrow Agent shall not have received a Response Certificate prior to the expiration of Objections the Response Period objecting to an Indemnification Amount within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice specifying such Indemnification AmountCompany’s claim for liquidated damages, the Holders and the Member Representative Purchaser shall be deemed to have acknowledged that agreed to the Indemnification Amount claimed on such Indemnification Notice is correct Liquidated Damages Certificate and final and to have agreed to the Depository distribution by the Escrow Agent shall thereafter transfer to such Parent Indemnified Party out of the Escrow Account (such transfer Funds to be applied the Company and deducted from the Escrow Fund pro rata in accordance with each Holder's Pro Rata Share Agent shall, immediately following the expiration of the Response Period, distribute the Escrow Funds to the Company. (iv) If the Escrow Agent shall have received within the applicable Response Period a Response Certificate contesting the distribution of the Escrow Fund) such number of Escrowed Shares with an aggregate value equal Funds to the Indemnification Amount set forth in the Indemnification Notice, together with any Proceeds attributable to such transferred Escrowed Shares. For purposes of this Agreement, each Escrowed Share shall be deemed to have a value equal to the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like). (d) If the Depository Agent receives, within thirty (30) calendar days after delivery to the Member Representative of an Indemnification Notice, a Certificate of Objections objecting to the Indemnification Amount specified in such Indemnification NoticeCompany, the amount so objected to Escrow Funds shall be held by the Depository Escrow Agent and shall not be released from the Escrow Account, except in accordance with either:any of the following. (A) written instructions set forth in a Joint Certificate; or (B) the determination of a final, non-appealable order of a court of competent jurisdiction to the effect that the Company properly terminated the Merger Agreement in accordance with Section 8.01(e) or 8.01(i) of the Merger Agreement. (C) After (i) written instructions executed by Parent and the Member Representative, or receipt of a Joint Certificate pursuant to Section 3(c)(iv)(A) of this Agreement or (ii) written instructions from the Parent Indemnified Party and final, non-appealable order of a court of competent jurisdiction pursuant to Section 3(c)(iv)(B) of this Agreement, the final judgment Escrow Agent shall distribute the Escrow Funds to the Company. (d) If the Merger Agreement has been terminated by Purchaser pursuant to Section 8.01(d) or Section 8.01(h) of the arbitrator having jurisdiction over the matters relating Merger Agreement, Purchaser shall deliver to the claimEscrow Agent a Purchaser Certificate to that effect, as provided in Section 7, after which time and upon receipt by the Depository Escrow Agent shall cause: of (Ai) such Purchaser Certificate and (ii) a transfer final, non-appealable order of a court of competent jurisdiction to the Parent Indemnified Party effect that the Purchaser properly terminated the Merger Agreement in accordance with Section 8.01(d) or Section 8.01(h) of the manner set forth in Section 6(c); provided, that all references to the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the written instruction or judgmentMerger Agreement, as the case may be; and (B) in , the event such written instruction or judgment is delivered following the First Release Date (as defined below), a distribution Escrow Agent shall promptly distribute directly to the Holders in an aggregate amount equal to the amount so objected to and not released pursuant to (A) above (the "Holdback Release"). Any Holdback Release shall be distributed to each Holder, in an amount equal to the product of the Holdback Release multiplied by such Holder's Pro Rata Share Purchaser all of the Escrow Fund, together with any Proceeds attributable to such released Escrowed SharesFunds. (e) Subject to Section 11, At such time as the amounts on deposit in the earlier of (i) April 1, 2007 or (ii) such date as shall have been specified Escrow Account are transferred in a joint written notice of Parent and the Member Representative to the Depository Agent (the "First Release Date")accordance with this Agreement, the Depository Escrow Agent shall distribute a number promptly liquidate all investments of Escrowed Shares that have a value equal to the amountEscrow Account, if any, and transfer to the Purchaser or the Company, as the case may be, by wire transfer in immediately available funds, the Escrow Funds in accordance with the written wire transfer instructions provided by the Purchaser, the Company or the Purchaser and the Company, as applicable, which shall be deemed to be standing instructions unless revised instructions are subsequently received by the value Escrow Agent. (f) Notwithstanding any other provision of this Agreement to the contrary, at any time prior to the termination of this Agreement, the Escrow Agent shall, if so instructed in writing signed by Purchaser and the Company, pay from the Escrow Account, as instructed in such writing, to Purchaser or the Company the amount of the Escrowed Shares at such date (valued at the Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)), exceeds the First Reserved Amount (the "First Released Amount"). The First Released Amount shall be transferred to each Holder, in an amount equal to the product of theEscrow Funds or other property so instructed.

Payments from the Escrow Account. (a) A If, at any time prior to 5:00 p.m. Eastern time on September , 2005 (the “Expiration Date”), a Parent Indemnified Party shall initiate a claim against deliver to the Escrow Fund Agent a certificate executed by delivering to the Member Representative, with a copy to the Depository Agent, Parent Indemnified Party or an authorized officer of a written notice Parent Indemnified Party (an "“Indemnification Notice"Certificate”), which Indemnification Notice Certificate shall: (i) state that such Parent Indemnified Party has incurred Damages for which it is a Parent Indemnified Party entitled to reimbursement under the Merger Agreement and has paid or incurred one or more Losses that satisfy the indemnification provisions set forth in Section 8.2 Article X of the Merger Agreement (each, a "Covered Loss"an “Indemnification Claim”); (ii) state in good faith the aggregate amount of such Indemnification Claim (the "“Indemnification Amount") of each such Covered Loss; and”); (iii) specify in reasonable detail each individual item of Damage included in the Indemnification Amount, the nature and basis of the misrepresentation, breach of warranty, breach of covenant or claim to which each such Covered Lossitem is related and the computation of the amount to which such Parent Indemnified Party claims to be entitled hereunder or under Article X of the Merger Agreement; (iv) attach relevant supporting documents, calculations, correspondence and other documents related to each item of Damage; and the Escrow Agent shall, promptly upon receipt of such Indemnification Certificate, deliver a copy of such Indemnification Certificate to the Equityholders’ Representative. (b) If the Member Equityholders’ Representative shall object in good faith to any portion of amount claimed in connection with any Indemnification Amount Claim specified in any Indemnification NoticeCertificate, the Member Equityholders’ Representative shall, within thirty twenty (3020) calendar business days after delivery by the Parent Indemnified Party Escrow Agent to the Member Equityholders’ Representative of such Indemnification NoticeCertificate (the “Response Period”), deliver to Parent and the Depository Escrow Agent (with a copy to the Parent Indemnified Party) a certificate, executed by the Member Equityholders’ Representative (a "Certificate of Objections"): an “Equityholders’ Certificate”), which shall specify in reasonable detail (i) specifying each such amount to which the Member Equityholders’ Representative objects in good faith; and and (ii) specifying in reasonable detail the nature and basis for each such good faith objection. Promptly upon receipt of a Certificate of Objections, the Depository Agent shall deliver a copy of such Certificate of Objections to the Parent Indemnified Party. (ci) If the Depository Escrow Agent shall not have received a an Equityholders’ Certificate of Objections objecting to the amount claimed with respect to an Indemnification Amount within thirty (30) calendar days after delivery Claim prior to the Member Representative expiration of an Indemnification Notice specifying such Indemnification Amountthe applicable Response Period, the Holders Equityholders and the Member Equityholders’ Representative shall be deemed to have agreed to the Indemnification Certificate, to have acknowledged that the correctness of the Indemnification Amount claimed on with respect to such Indemnification Notice is correct Claim and final and to have agreed that cash in an amount equal to the Depository Agent shall thereafter transfer to such Parent Indemnified Party out of full Indemnification Amount may be released from the Escrow Account to the Parent Indemnified Party; or (such transfer to be applied and deducted from ii) if the Escrow Fund pro rata in accordance with each Holder's Pro Rata Share Agent shall have received an Equityholders’ Certificate pursuant to Section 5(d) below prior to the expiration of the Escrow Fund) such number Response Period with respect to an Indemnification Claim as to which any portion of Escrowed Shares with an aggregate value equal to the Indemnification Amount set forth in is not objected to, the Indemnification Notice, together with any Proceeds attributable to such transferred Escrowed Shares. For purposes of this Agreement, each Escrowed Share Equityholders and the Equityholders’ Representative shall be deemed to have a value agreed to that portion of the Indemnification Certificate, to have acknowledged the correctness of that portion of the Indemnification Amount as to which no objection is raised in the Equityholders’ Certificate and to have agreed that cash in an amount equal to that portion of the Indemnification Amount as to which no objection is raised in the Equityholders’ Certificate may be released from the Escrow Account to the Parent Indemnified Party; then, in either case, the Escrow Agent shall, within five (5) business days following the receipt of the Equityholders’ Certificate or following the expiration of the relevant twenty (20) business-day period, remit from the Escrow Funds to the Parent Indemnified Party that portion of such Indemnification Amount equal to the Parent Common Stock Price (amount of such Indemnification Claim to which the Equityholders’ Representative has not objected, together with the pro rata portion of the interest and investment income deposited in the Escrow Account from the Closing Date attributable to such Indemnification Amount or portion thereof, as such amount the case may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like)be. (d) If the Depository Escrow Agent receives, shall have received within thirty (30) calendar days after delivery to the Member Representative applicable Response Period an Equityholders’ Certificate contesting all or a portion of an Indemnification Notice, Amount (a Certificate of Objections objecting to the Indemnification Amount specified in such Indemnification Notice“Contested Claim”), the amount so objected to contested (the “Contested Amount”) shall be held by the Depository Escrow Agent and shall not be released from the Escrow Account, except in accordance with eitherany of the following: (i) written instructions executed by each Parent Indemnified Party and the Member Equityholders’ Representative, or (ii) written instructions from if the Contested Claim concerns amounts that are subject to third party claims brought against the Parent Indemnified Parties in a litigation or arbitration, the determination of such amount in a final, non-appealable decision, award or settlement of such litigation or arbitration, or (iii) if the Contested Claim concerns amounts that are not subject to third party claims and if the Equityholders’ Representative and Parent, on behalf of the Parent Indemnified Parties, are unable to resolve any such Contested Claim within thirty (30) days after delivery of the Equityholders’ Certificate, the settlement of such Contested Claim shall be resolved by a binding arbitration proceeding, which shall take place in New York, New York. All Contested Claims shall be conducted in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association in effect on the date on which the Equityholders’ Certificate is delivered (the “AAA Rules”). The Contested Claim shall be determined by one arbitrator, except that if the Contested Claim involves an amount in excess of $1,000,000 (exclusive of interest and costs), three arbitrators shall be appointed. Persons eligible to serve as arbitrators shall be members of the AAA Large, Complex Case Panel or persons who have professional credentials similar to those persons listed on such AAA panels. The arbitrator(s) shall have the right to appoint an independent expert (including an independent accounting firm) and the costs and expenses of such expert, together with the costs and expenses of the arbitrator(s), shall be borne one-half by the Equityholders and one-half by Parent. The Equityholders’ Representative and Parent shall cause the arbitrator(s) to decide the Contested Claim within thirty (30) business days after the appointment of the last arbitrator. The arbitrators’ decision shall relate solely to whether the Parent Indemnified Party is entitled to receive the Contested Amount (or a portion thereof) from the Escrow Account pursuant to the applicable terms of the Merger Agreement and the this Agreement. The final judgment decision of the arbitrator having jurisdiction over or majority of the matters relating arbitrators shall be furnished to the claimEquityholders’ Representative, as provided Parent and the Escrow Agent in writing and shall constitute the conclusive determination of the issue in question; be binding upon the Equityholders’ Representative, the Equityholders, the Parent Indemnified Parties and the Escrow Agent; and shall not be contested by any of them. The parties knowingly and voluntarily waive their rights to have any Contested Claim tried and adjudicated by a judge or a jury. (e) After (i) the receipt of written instructions pursuant to Section 75(d)(i) of this Agreement, after which time (ii) the Depository final, non-appealable decision, award or settlement of a third-party claim pursuant to Section 5(d)(ii) of this Agreement, or (iii) the final arbitration decision pursuant to Section 5(d)(iii) of this Agreement, the Escrow Agent shall cause: (A) a transfer forward to the Parent Indemnified Party in the manner set forth in Section 6(c); provided, that all references portion of such Indemnification Amount equal to the lesser of (x) the Indemnification Amount shall be deemed to be references to the amount to be transferred to the Parent Indemnified Party as specified in the such written instruction instructions, decision, award, settlement or judgmentarbitration decision, as the case may be; , and (By) the Escrow Funds then remaining in the event such written instruction or judgment is delivered Escrow Account. (f) Notwithstanding the limitations set forth in Section 5(a) of this Agreement, following the First Release Date Expiration Date, the Parent Indemnified Parties shall be entitled to assert claims against the Escrow Account under this Section 5 with respect to all Damages that were included in determining the Reserved Amount (as defined below). For purposes of this Agreement, a distribution to the Holders in an aggregate amount “Reserved Amount” shall be equal to the amount so objected to aggregate dollar value of all amounts claimed and not released pursuant to (A) above (the "Holdback Release"). Any Holdback Release shall be distributed to each Holder, unpaid in an amount equal all Indemnification Certificates delivered to the product Escrow Agent prior to the Expiration Date which claims or amounts shall not have been resolved on or prior to the Expiration Date. (g) Upon the termination of this Agreement in accordance with Section 10(a) hereof, the Holdback Release multiplied by such Holder's Pro Rata Share Escrow Agent shall promptly liquidate all investments of the Escrow Fund, together with any Proceeds attributable to such released Escrowed Shares. (e) Subject to Section 11, on the earlier of (i) April 1, 2007 or (ii) such date as shall have been specified in a joint written notice of Parent and the Member Representative to the Depository Agent (the "First Release Date"), the Depository Agent shall distribute a number of Escrowed Shares that have a value equal to the amountAccount, if any, by which and transfer to the value Equityholders’ Representative on behalf of the Escrowed Shares Equityholders by wire transfer in immediately available funds, the Escrow Funds, if any, then remaining in the Escrow Account in accordance with the written wire transfer instructions provided by the Equityholders’ Representative, which shall be deemed to be standing instructions unless revised instructions are subsequently received by the Escrow Agent. (h) Notwithstanding any other provision of this Agreement to the contrary, at such date (valued at any time prior to the termination of this Agreement, the Escrow Agent shall, if so instructed in writing signed by Parent Common Stock Price (as such amount may be appropriately adjusted for stock splits, stock dividends, stock combinations, and the like))Equityholders’ Representative, exceeds pay from the First Reserved Amount (Escrow Account, as instructed in such writing, to Parent, any Parent Indemnified Party, the "First Released Amount"). The First Released Amount shall be transferred to each Holder, in an Equityholders’ Representative or any Equityholder the amount equal to of the product of theEscrow Funds or other property so instructed.