Common use of Procedures with Respect to Indemnity Claims Clause in Contracts

Procedures with Respect to Indemnity Claims. 4.1 If Parent intends to assert a claim against the Escrow Fund on behalf of any Parent Indemnified Person pursuant to Section 8.2 of the Merger Agreement, subject to the limitations set forth in Section 8.1 and Section 8.2 of the Merger Agreement (including the provisions of Section 8.2(d) of the Merger Agreement), Parent shall deliver a written notice (a “Notice of Loss”) to the Escrow Agent (with a concurrent copy to APSLP). Each Notice of Loss shall specify in reasonable detail, to the extent then known, the basis of such claim and such Parent Indemnified Person’s good faith estimate of the aggregate amount of its Losses. 4.2 If, by 5:00 p.m. Pacific Time thirty (30) days after receipt by the Escrow Agent (with a concurrent copy to APSLP) of a Notice of Loss (the “Objection Period”), the Escrow Agent (with a concurrent copy to Parent) has not received a written notice from APSLP (an “Objection Notice”) disputing the right of Parent to indemnification or the amount of indemnification sought in such Notice of Loss, then Parent shall deliver written notice to the Escrow Agent (with a concurrent copy to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the expiration of the Objection Period and the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement and, subject to Sections 4.5 and 5, the Escrow Agent shall, unless by 5:00 p.m. Pacific Time five (5) Business Days after receipt by the Escrow Agent of such written notice (the “Methodology Objection Period”) the Escrow Agent (with a concurrent copy to Parent) has received written notice (a “Methodology Objection Notice”) from APSLP disputing the methodology pursuant to which Parent determined the Fair Market Value of such Parent Common Stock, deliver to Parent from the Escrow Fund the number of Escrow Shares specified in such Notice of Loss. 4.3 If, during the Objection Period, the Escrow Agent and Parent receive an Objection Notice, then: (a) with respect to the aggregate amount (if any) of Losses set forth in the applicable Notice of Loss that are not in dispute, Parent shall deliver a written notice to the Escrow Agent (with a concurrent copy to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the date of such Objection Notice and the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement and, subject to Sections 4.5 and 5, the Escrow Agent shall, unless within the Methodology Objection Period it and Parent have received a Methodology Objection Notice from APSLP, deliver to Parent from the Escrow Fund the number of Escrow Shares specified in such notice; and (b) with respect to the aggregate amount (if any) of Losses set forth in the applicable Notice of Loss that are in dispute or if a Methodology Objection Notice has been delivered in accordance with the foregoing, the Escrow Agent shall not release any Escrow Shares in respect of such amount in dispute until receipt of (i) a joint written notice from Parent and APSLP directing the disposition of all or part of the remaining Escrow Fund in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement or (ii) a copy of a final, non-appealable order of a Chosen Court (defined below) with respect to the amount of the disputed Losses set forth in the Objection Notice, together with a written notice from Parent (which Parent shall concurrently deliver to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the date of such final, non-appealable order and the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement, subject to, in the case of clause (ii), the Escrow Agent and Parent not having received a Methodology Objection Notice from APSLP during the Methodology Objection Period (and if a Methodology Objection Notice has been so received, then the Escrow Agent shall not release any Escrow Shares in respect of such amount in dispute until receipt of a joint written notice from Parent and APSLP directing the disposition of all or part of the remaining Escrow Fund in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement). Upon receipt of any such notice delivered pursuant to Section 4.3(b)(i) and/or Chosen Court determination, as applicable, and following the expiration of the Methodology Expiration Period in the case of a Chosen Court determination, the Escrow Agent shall promptly, and in any event within three (3) Business Days thereafter, implement its terms. The Escrow Agent shall be entitled to conclusively rely upon any such notice delivered in accordance with this Section 4.3.

Procedures with Respect to Indemnity Claims. 4.1 3.1 If Parent the Purchasers’ Representative intends to assert a claim against the Escrow Fund on behalf of any Parent Purchaser Indemnified Person Party pursuant to Section 8.2 Article VII and/or Article X of the Merger AgreementPSA, subject to the limitations set forth in Section 8.1 and Section 8.2 of the Merger Agreement (including the provisions of Section 8.2(d) of the Merger Agreement), Parent Purchasers’ Representative shall deliver a written notice of such claim in reasonable detail in light of the circumstances then known to the Purchasers’ Representative to the Escrow Agent and the Sellers’ Representative prior to the Termination Date (each such notice, a “Notice of Loss”) to the Escrow Agent (with a concurrent copy to APSLP). Each Notice of Loss shall specify in reasonable detail, to the extent then known, the basis of such claim and such Parent Indemnified Person’s good faith estimate of the aggregate amount of its Losses. 4.2 3.2 If, by 5:00 p.m. Pacific Time thirty within forty-five (3045) days after receipt by the Escrow Agent (with a concurrent copy to APSLP) of a Notice of Loss (the “Objection Period”), the Escrow Agent (with a concurrent copy to Parent) has not received a written notice statement from APSLP the Sellers’ Representative (an the “Objection Notice”) disputing the right of Parent the applicable Purchaser Indemnified Party to indemnification or and/or the amount of indemnification sought in such Notice of Loss, then Parent shall deliver written notice to the Escrow Agent (with a concurrent copy to APSLP) setting forth the Fair Market Value of Parent Common Stock as of shall, within five Business Days following the expiration of the Objection Period Period, pay to the Purchasers’ Representative (on behalf of and for distribution to the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(eapplicable Purchaser Indemnified Party) of the Merger Agreement and, subject to Sections 4.5 and 5, the Escrow Agent shall, unless by 5:00 p.m. Pacific Time five (5) Business Days after receipt by the Escrow Agent of such written notice (the “Methodology Objection Period”) the Escrow Agent (with a concurrent copy to Parent) has received written notice (a “Methodology Objection Notice”) from APSLP disputing the methodology pursuant to which Parent determined the Fair Market Value of such Parent Common Stock, deliver to Parent from the Escrow Fund the number Fund, by wire transfer of Escrow Shares specified in such Notice of Loss. 4.3 Ifimmediately available funds, during the Objection Period, the Escrow Agent and Parent receive an Objection Notice, then: (a) with respect amount equal to the aggregate amount (if any) of Losses set forth in the applicable Notice of Loss that are not in dispute, Parent shall deliver a written notice to the Escrow Agent (with a concurrent copy to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the date of such Objection Notice and the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement and, subject to Sections 4.5 and 5, the Escrow Agent shall, unless within the Methodology Objection Period it and Parent have received a Methodology Objection Notice from APSLP, deliver to Parent from the Escrow Fund the number of Escrow Shares specified in such notice; and (b) with respect to the aggregate amount (if any) of Losses set forth in the applicable Notice of Loss that are in dispute or if a Methodology Objection Notice has been delivered in accordance with the foregoing, the Escrow Agent shall not release any Escrow Shares in respect of such amount in dispute until receipt lesser of (ix) a joint written notice from Parent and APSLP directing the disposition of all or part amount of the remaining Escrow Fund (exclusive of any Earnings) and (y) the amount specified in accordance with the methodology set forth in Section 8.2(e) Notice of Loss. Escrow Agent will provide two Business Days’ prior notice to the Sellers’ Representative of the Merger Agreement or (ii) a copy payment of a final, non-appealable order of a Chosen Court (defined below) with respect to the amount any portion of the disputed Losses set forth in the Objection Notice, together with a written notice from Parent (which Parent shall concurrently deliver to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the date of such final, non-appealable order and the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement, subject to, in the case of clause (ii), the Escrow Agent and Parent not having received a Methodology Objection Notice from APSLP during the Methodology Objection Period (and if a Methodology Objection Notice has been so received, then the Escrow Agent shall not release any Escrow Shares in respect of such amount in dispute until receipt of a joint written notice from Parent and APSLP directing the disposition of all or part of the remaining Escrow Fund in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement). Upon receipt of to any such notice delivered Purchaser Indemnified Party pursuant to Section 4.3(b)(i) and/or Chosen Court determination, as applicable, and following the expiration of the Methodology Expiration Period in the case of a Chosen Court determination, the Escrow Agent shall promptly, and in any event within three (3) Business Days thereafter, implement its terms. The Escrow Agent shall be entitled to conclusively rely upon any such notice delivered in accordance with this Section 4.3.this

Procedures with Respect to Indemnity Claims. 4.1 3.1 If Parent intends to assert a claim against the Escrow Fund Indemnity Amount on behalf of any Parent Buyer Indemnified Person pursuant to Section 8.2 Article IX of the Merger Agreement, subject Parent shall deliver to the limitations set forth Escrow Agent, with a substantially concurrent copy to the Shareholder Representative, in each case prior to the Escrow Release Date a written notice of such claim, which complies with Section 8.1 and Section 8.2 7.3(b) of the Merger Agreement (including the provisions of Section 8.2(d) of the Merger Agreement)each such notice, Parent shall deliver a written notice (a “Notice of Loss”) ). 3.2 If, within 20 Business Days after a Notice of Loss is delivered to the Escrow Agent (with a concurrent copy to APSLP). Each Notice of Loss shall specify in reasonable detail, to the extent then known, the basis of such claim and such Parent Indemnified Person’s good faith estimate of the aggregate amount of its Losses. 4.2 If, by 5:00 p.m. Pacific Time thirty (30) days after receipt by the Escrow Agent (with a concurrent copy to APSLP) of a Notice of Loss (the “Objection Period”), (i) the Escrow Agent (with receives from Parent a concurrent copy to Parent) has not received a written notice from APSLP (an “Objection Notice”) disputing the right of Parent to indemnification or the amount of indemnification sought in such Notice of Loss, then Parent shall deliver written notice to the Escrow Agent (with a concurrent copy to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the expiration agreement of the Objection Period and the number of Escrow Shares to be delivered Shareholder Representative authorizing payment to Parent in accordance with from the methodology set forth in Indemnity Account pursuant to Section 8.2(e7.5(a) of the Merger Agreement andAgreement, subject to Sections 4.5 and 5or (ii) the Escrow Agent does not receive from Shareholder Representative an Objection Notice (as defined below) disputing any portion or all of such Notice of Loss in accordance with Section 7.5(b) of the Merger Agreement, the Escrow Agent shall, unless by 5:00 p.m. Pacific Time five (5) within two Business Days after receipt thereafter, pay to Parent on behalf of the applicable Buyer Indemnified Party from the Indemnity Account, by wire transfer of immediately available funds to the Escrow Agent account specified by Parent, an amount equal to the lesser of such written notice (the “Methodology Objection Period”x) the Escrow Agent amount remaining in the Indemnity Account and (with a concurrent copy y) the amount specified in the Notice of Loss. If the amount to Parent) has received written notice (a “Methodology Objection Notice”) from APSLP disputing the methodology pursuant to which Parent determined the Fair Market Value of such Parent Common Stock, deliver be paid to Parent from on behalf of the Escrow Fund applicable Buyer Indemnified Part with respect to any Notice of Loss is not known at the number of Escrow Shares specified in time such Notice of LossLoss is delivered, then such payment to Parent shall not be due until the actual amount payable with respect to such Notice of Loss is known. 4.3 3.3 If, during the Objection Period, the Escrow Agent and Parent receive an Objection Notice, then: (a) with respect to receives a written statement from the aggregate amount (if any) Shareholder Representative disputing any portion or all of Losses set forth in the applicable Notice of Loss that are not in dispute, Parent shall deliver a written notice to (the Escrow Agent (with a concurrent copy to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the date of such “Objection Notice and the number of Escrow Shares to be delivered to Parent in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement and, subject to Sections 4.5 and 5, the Escrow Agent shall, unless within the Methodology Objection Period it and Parent have received a Methodology Objection Notice from APSLP, deliver to Parent from the Escrow Fund the number of Escrow Shares specified in such notice; and (b) with respect to the aggregate amount (if any) of Losses set forth in the applicable Notice of Loss that are in dispute or if a Methodology Objection Notice has been delivered in accordance with the foregoingNotice”), the Escrow Agent shall not release any Escrow Shares in respect (i) promptly forward a copy of such Objection Notice to Parent, (ii) if applicable, pay Parent on behalf of the applicable Buyer Indemnified Party from the remaining funds in the Indemnity Account, by wire transfer of immediately available funds to the account specified by Parent, any amount that is not in dispute pursuant to the Objection Notice (or, if less, the amount remaining in the Indemnity Account), and (iii) continue to hold in the Indemnity Account all amounts in dispute pursuant to the Objection Notice, until receipt of (iA) a joint written notice from statement signed by the Shareholder Representative and Parent and APSLP directing the disposition of all or part any portion of the remaining Escrow Fund amounts formerly disputed in accordance with the methodology set forth in such Objection Notice or (B) a copy of a final and binding determination of an arbitrator selected pursuant to Section 8.2(e7.5(c) of the Merger Agreement or (ii) a copy of a final, non-appealable order of a Chosen Court (defined below) with respect to the amount of the disputed Losses matters set forth in the Objection Notice, Notice permitting the Escrow Agent to dispose of the amount in dispute together with a written notice certificate from Parent (which Parent shall concurrently deliver instructing the Escrow Agent to APSLP) setting forth the Fair Market Value of Parent Common Stock as of the date of distribute such final, non-appealable order and the number of Escrow Shares to be delivered to Parent amount in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreementsuch order, subject toprovided that, in the case of clause (iiA) or (B), in no event will the Escrow Agent and Parent not having received a Methodology Objection Notice from APSLP during distributable amount exceed the Methodology Objection Period (and if a Methodology Objection Notice has been so received, then amount remaining in the Escrow Agent shall not release any Escrow Shares in respect of such amount in dispute until receipt of a joint written notice from Parent and APSLP directing the disposition of all or part of the remaining Escrow Fund in accordance with the methodology set forth in Section 8.2(e) of the Merger Agreement)Indemnity Account. Upon receipt of any such notice delivered pursuant to Section 4.3(b)(i) and/or Chosen Court determination, as applicable, and following the expiration of the Methodology Expiration Period in the case of a Chosen Court joint statement or arbitration determination, the Escrow Agent shall promptly, and in any event within three (3) five Business Days thereafter, implement its terms. The . 3.4 Any Notice of Loss pursuant to Section 3.2 or 3.3 shall constitute, prior to its resolution, an “Outstanding Claim”. 3.5 On the Escrow Release Date as set forth in the Merger Agreement, the Escrow Agent shall distribute to the Shareholder Representative, by wire transfer of immediately available funds to the account specified in writing by the Shareholder Representative, the amount remaining in the Indemnity Account less the aggregate amount of (i) any amount(s) payable under Section 3.2 or 3.3 hereof that has not yet been paid to Parent, (ii) any amount(s) payable to Parent under Section 2.5(b)(ii) of the Merger Agreement with respect to any Dissenting Shares (which amount(s) will be entitled concurrently paid to conclusively rely upon Parent by wire transfer of immediately available funds to the account specified by Parent), and (iii) the amount of all Outstanding Claims, as set forth in the related Notice of Claim, existing as of the Escrow Release Date. Following the resolution of all such Outstanding Claims and the payments to Parent of any amounts owed to any Buyer Indemnified Person in connection with all such notice delivered Outstanding Claims, the amount remaining in accordance the Indemnity Account, if any, shall be distributed, by wire transfer of immediately available funds to the account specified in writing by the Shareholder Representative, to the Shareholder Representative, less any amount(s) payable to Parent under Section 2.5(b)(ii) of the Merger Agreement with this Section 4.3respect to any Dissenting Shares (which amount(s) will be concurrently paid to Parent by wire transfer of immediately available funds to the account specified in writing by Parent).