Common use of Release of Escrow Clause in Contracts

Release of Escrow. Subject to the provisions in the Standard Terms, the Escrow Agent shall release the Escrowed Payment and the Preferred Stock as follows: (a) Upon the written instruction of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basis, the Escrow Agent shall return to Investors any such amounts. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (d) Within five (5) days after receipt of joint written instructions signed by the Company and the Investors, or October 1, 2007, whichever occurs earlier, the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow Agent. (e) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”), the Escrow Agent shall deliver the Escrowed Payment and Preferred Stock in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject to the provisions in the Standard Termsof Section 4.2, the Escrow Agent shall release the Escrowed Payment and the Preferred Stock from escrow as follows: (a) Upon receipt by the written instruction Escrow Agent of (i) oral instructions from Dxxxx Grin and/or Exxxxx Grin (each of whom is a director of the Company setting forth Purchaser) consenting to the release of the Escrowed Payment from escrow in accordance with the Disbursement Letter following the Escrow Agent’s receipt of the Escrowed Payment which such instructions Laurus acknowledges shall be provided solely upon the satisfaction of items (ii), (iii) and (iv) below, (ii) the Documents, (iii) the Escrowed Payment, and (iv) written notice in the form of Exhibit C hereof from Amphora of its receipt of $5,000,000 (“the “US Bank Cash”) from U.S. Bank (the “Amphora Notice”), which notice shall be given by Amphora upon receipt of such funds, the Escrowed Payment shall promptly be disbursed in accordance with the Disbursement Letter. The Disbursement Letter shall include, without limitation, Escrow Agent’s authorization to retain from the Escrowed Payment Escrow Agent’s fee for acting as Escrow Agent hereunder and the Closing Payment for delivery to Laurus Capital Management, LLC in accordance with the Disbursement Letter. Upon satisfaction of items (ii) and (iii) above, Escrow Agent shall notify BOA in writing (which may be returned on an Investor by Investor basis, e-mail) of the satisfaction of such items. The Company hereby agrees that (i) BOA’s consent to the release of the US Bank Cash to Amphora shall become effective only after BOA has received such notice from the Escrow Agent and (ii) Amphora’s Payoff Letter shall return to Investors any such amountsbecome effective only after Amphora has received the US Bank Cash. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (d) Within five (5) days after receipt of joint written instructions signed by the Company and the Investors, or October 1, 2007, whichever occurs earlier, the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow Agent. (e) Notwithstanding the above, upon Upon receipt by the Escrow Agent (before the disbursement of the Escrowed Payment as set forth in Section 3.1(a)), of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”)) relating to the Escrowed Payment, the Escrow Agent shall deliver remit the Escrowed Payment and Preferred Stock in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has is a court of competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject to the provisions in the Standard Termsof Section 4.2, the Escrow Agent shall release the Escrowed Payment Company Documents and the Preferred Stock Subscriber Documents as follows: (a) Upon On the written instruction of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basisInitial Closing Date, the Escrow Agent shall return will simultaneously release the Initial Closing Company Documents to Investors any such amountsthe Subscriber and release the Subscription Agreement and the Initial Closing Purchase Price to the Company except that (i) the Pledge and Escrow Agreement will be released to Grushko & Xxxxxxx, P.C. as escrow agent thereunder; and (ii) the Legal Fees in connection with the Initial Closing will be released to the Subscribers’ attorneys. (b) From time to time until and including September 30, 2007, upon On the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release RequestSecond Closing Date, the Escrow Agent will simultaneously release the Escrowed Payment, in Second Closing Company Documents to the amount specified in Subscriber and release the Company Release Request, Second Closing Purchase Price to the Company. (c) On each Closing Date, an amount equal to $250,000 ($500,000 in the aggregate) of the Escrowed Payment will be retained in escrow and not released pursuant to Section 3.1(a). Such portions of the Escrowed Payment will be retained in escrow by the Escrow Agent pursuant to this Agreement in a non-interest bearing account and released to the Company or on the Company’s behalf not more frequently than one time each ten days. A request for release must be made in writing to the Escrow Agent and Collateral Agent. The request must include a copy of unanimously adopted resolutions of the board of directors of the Company certified by the secretary of the Company and the Company’s chief financial officer that (i) the Company is requesting a release of funds and the details thereof including the amount, purposes, and wire delivery instructions, (ii) that such requested funds are for reimbursement of funds which were timely employed in conformity in all material respects with the use of proceeds set forth on Schedule 9(e) to the Subscription Agreement under the heading “Use of Proceeds to be reimbursed After Closing”, and (iii) an Event of Default, or an event that with the giving of notice or the passage of time could become an Event of Default, has not occurred. The Company must provide to Collateral Agent reasonably satisfactory proof that the funds for which reimbursement is sought had been used for the purposes described in part (ii) of the previous sentence. The Escrow Agent may not release any funds pursuant to this Section 3.1(b) if an objection to such release has been made by Collateral Agent. Deviations from Schedule 9(e) to the Subscription Agreement may be made subject to the written approval of the Collateral Agent. Unless postponed by the Company and Collateral Agent, any funds retained in escrow on the one year anniversary of the Initial Closing Date will be released to Subscribers requesting such release in proportion to the relative amount of Note principal held by all Subscribers as of such one year anniversary date. Upon release to the Subscribers, such sums shall be applied against amounts outstanding on the Notes in the manner set forth in the Notes. The Escrow Agent may request any written representations, certifications and documents in Escrow Agent’s absolute discretion before releasing any funds from escrow. (d) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (de) Within five (5) days after Notwithstanding the above, upon receipt by the Escrow Agent of joint written instructions ("Joint Instructions") signed by the Company and the InvestorsSubscriber, or October 1, 2007, whichever occurs earlier, it shall deliver the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A Company Documents and Subscriber Documents in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to terms of the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow AgentJoint Instructions. (ef) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “"Court Order”"), the Escrow Agent shall deliver the Escrowed Payment Company Documents and Preferred Stock Subscriber Documents in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject to The Escrow Agreement shall specify that the provisions in the Standard Terms, the Indemnification Escrow Agent shall release the Escrowed Payment and the Preferred Stock as follows: Shares (aif any) Upon the written instruction of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basis, the Escrow Agent shall return to Investors any such amounts. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company released to the Escrow Agent. (d) Within five (5) days after receipt of joint written instructions signed by the Company and the Investors, or October 1, 2007, whichever occurs earlier, the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A Stockholders in accordance with Company Release Requests theretofore deliveredsuch holders’ relative Applicable Percentages on the first Business Day following the Survival Expiration Date; provided, and however, that if any remaining Escrowed Payments claim pursuant to this Article XII shall be returned to the Investors have been properly asserted by any GPIAC Indemnified Party in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time this Agreement on or prior to October 1the Survival Expiration Date and remain pending on the Survival Expiration Date (any such claim, 2007a “Pending Claim”), Investors may provide (i) the Indemnification Escrow Shares released to the Escrow Stockholders shall be the amount of Indemnification Escrow Shares then held by the Escrow Agent, minus the aggregate number of Acquiror Common Shares equal to (A) the amount of such Pending Claim divided by $10.00, divided by (B) the Closing Ownership Ratio and (ii) any shares that remain in escrow following the Survival Expiration Date in respect of any such Pending Claim shall be released to the Escrow Stockholders entitled to receive the Merger Consideration in accordance with such holders’ relative Applicable Percentages promptly upon resolution or (if applicable) satisfaction of such Pending Claim. In each case in which this Section 12.9 provides for the release of Indemnification Escrow Shares, each of the GPIAC-Designated Directors and the Holder Representative shall promptly submit joint written instructions to the Escrow Agent to redesignate instructing the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, distribute the Company Indemnification Escrow Shares in accordance with this Section 12.9 and the Escrow AgentAgreement. (e) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”), the Escrow Agent shall deliver the Escrowed Payment and Preferred Stock in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject In addition to any provision relating to the provisions release of Escrowed Funds (as defined in the Standard TermsEscrow Agreement) set forth in the Escrow Agreement, if on the third anniversary of the Closing Date, the Escrow Agent shall release Amount (as defined in the Escrow Agreement) is in excess of $7,000,000, that excess amount will be released from the Escrowed Payment and Funds to Individual, on behalf of Sellers, if Buyer reasonably determines in good faith that the Preferred Stock as follows: (a) Upon the written instruction total mix of the Company setting forth facts presented or discovered and source of any pending or threatened Third Party Claims (as defined in the Escrowed Payment Escrow Agreement) against the Companies relating to any Environmental Liability (as hereinafter defined) could not reasonably be returned on an Investor by Investor basisexpected to result in additional Third Party Claims which Buyer reasonably determines could be significant relating to Environmental Liabilities being brought against the Companies. For purposes of this Section 1.6, the Escrow Agent shall return to Investors any such amounts. amount of Unresolved Claims (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth defined in such Company Release Request, the Escrow Agent Agreement) will release the Escrowed Payment, be reasonably determined by Buyer in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (d) Within good faith. Buyer will provide Individual with written notice of its determination within five (5) business days after receipt the third anniversary of joint written instructions signed by the Company Closing Date and if such determination results in such excess amount to be released from the InvestorsEscrowed Funds, or October 1, 2007, whichever occurs earlier, the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, Buyer and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions Sellers will execute and deliver to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such joint written instructions providing for such release to Escrow Agent Individual, for the benefit of Sellers, of such excess amount within three (3) business days of the date of Sellers’ notice referenced herein. Any disputes regarding Buyer’s determination referenced above will be governed by signing same and provide written notice to all Investorsthe laws of the State of (including, without limitation, the Company and the Escrow Agent. (e) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”Delaware Voluntary Alternative Dispute Resolutions Act), notwithstanding any choice of law provision contained herein or elsewhere, and will be submitted to binding arbitration to an arbitrator skilled in the Escrow Agent shall deliver the Escrowed Payment subject matter of any dispute hereunder mutually agreeable to Sellers and Preferred Stock Buyer. Except as otherwise provided in this Section 1.6, such arbitration will be conducted in accordance with the Court Order. Any Court Order shall be accompanied by an opinion provisions of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealableSection 10.8.

Release of Escrow. Subject to the provisions in the Standard Terms, the The Escrow Agent shall release the Escrowed Payment and the Preferred Stock Shares as follows: (a) Upon In accordance with Section 1.07 of the written instruction Guarantee, and notwithstanding any provision to the contrary in the Note, the Guarantee, the Subscription Agreement, and the Side Letter, Investor has the right, in its sole and absolute discretion, to elect to withdraw Shares in connection with its conversion rights under the Note, in part or in whole, from the Shares in Escrow, regardless of whether a default has occurred, and as if and in lieu of the Company setting forth delivering Common Stock in satisfaction of its obligations under Section 8 of the Escrowed Payment Note. If Investor makes such an election under this Section 4.03(a), Investor shall receive from Escrow, in its sole and absolute discretion, either Restricted or Unrestricted Shares, on the same basis as the Company would have had to have delivered Common Stock under Section 8 of the Note, and for each such Share delivered from Escrow, the Company shall be relieved concomitantly of its obligation to deliver Common Stock on a share-for-share basis under Section 8 of the Note. Investor shall notify the Company of an election under this Section 4.03(a) in the Notice provided pursuant to Section 8(c) of the Note, with a copy of such Notice to be returned on an Investor by Investor basis, provided to the Escrow Agent and the Stock Escrow Agent. Nothing in this Section 4.03 shall return act to Investors limit the registration rights of the Investor as fully set for in Section vi of the Side Letter or relieve the Company from any such amountsof its obligations regarding registration of the Shares. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing Any objection by the Company to the release of Shares from Escrow Agent. in accordance with Section 4.03(a) must be delivered, in accordance with Section 5.08(b), to the Escrow Agent within two (d2) Within five (5) business days after receipt of joint the date of such Notice. If the Escrow Agent does NOT receive such objection within the time provided, time being of the essence, it shall release the Shares in accordance with the Notice. If the Escrow Agent receives a timely objection, it shall retain the Shares subject to further written instructions signed by the Company and the InvestorsInvestor or subject to any dispute resolution provided under Section 4.05. For purposes of this provision, or October 1, 2007, whichever occurs earlier, the escrow account a Notice shall not be closed. Promptly thereafter, all certificates for Preferred Stock shall be deemed to have been delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretionon a particular day, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow Agent. (e) Notwithstanding the above, upon receipt if it is received by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction after 5:00 p.m. New York time. (a “Court Order”), c) The Shares shall be held in escrow by the Escrow Agent until the Company has satisfied all of its obligations under the Note, the Guarantee, the Subscription Agreement and the Side Letter. The Escrow Agent may not return to the Guarantors the remainder of the Shares held in escrow pursuant to this Escrow Agreement unless and until they are notified in writing by all parties with a direction to do so. Any dispute as to the return of the Shares to the Guarantors shall deliver the Escrowed Payment and Preferred Stock be resolved in accordance with the Court OrderSection 4.05. Any Court Order It shall be accompanied by an opinion the Guarantors' sole responsibility to allocate the return of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealableshares, if any, as among them.

Release of Escrow. Subject to this Section 4(b), on the provisions earlier of (i) the first anniversary of the Closing Date or (ii) the date of the first post-Closing audit of the Combined Companies, both of which will be certified to Escrow Agent in a certificate jointly signed by the Standard TermsShareholder and the Chairman or the Chief Executive Officer of UBICS (the "ESCROW TERMINATION DATE"), the Escrow Agent shall release to the Escrowed Payment and the Preferred Stock as follows: (a) Upon the written instruction Shareholder all of the Company setting forth Holdback Escrow Shares deposited in Escrow, less the Escrowed Payment sum of (i) that number of Holdback Escrow Shares that shall have been released prior to be returned such date pursuant to the terms hereof, and (ii) that number of Retained Shares (defined below) together with corresponding stock powers. In the event that there are any Claims specified in any Claim Notice previously delivered to Escrow Agent which are unresolved or are the subject of a Disputed Claim on an Investor by Investor basisthe Escrow Termination Date, subject to the objection of the Shareholder as provided herein, Escrow Agent shall return retain in the Escrow that number of Holdback Escrow Shares which are necessary based on the UBICS Price Per Share, to Investors satisfy any such amounts. unsatisfied Claims until such Claims have been fully and finally resolved (bthe "RETAINED SHARES"). If the Shareholder disputes the retention of all or a portion of the Retained Shares, UBICS and the Shareholder shall attempt in good faith within thirty (30) From time calendar days after the Escrow Termination Date (the "RETENTION RESOLUTION PERIOD") to time until and including September 30, 2007, agree upon the receipt by Escrow Agent number of Retained Shares. If UBICS and the Shareholder should so agree, a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set memorandum setting forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company agreement shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (d) Within five (5) days after receipt of joint written instructions prepared and signed by the Company Shareholder and by the Investors, Chairman or October 1, 2007, whichever occurs earlier, the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock chief financial officer of UBICS and shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow Agent. (e) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”), the . Escrow Agent shall deliver the Escrowed Payment be entitled to rely on any such memorandum and Preferred Stock shall distribute and/or retain such Holdback Escrow Shares in accordance with the Court Orderterms thereof. Any Court Order If UBICS and the Shareholder cannot agree within the Retention Resolution Period, the number of Retained Shares (if any) shall be accompanied by an opinion of counsel for the party presenting the Court Order determined pursuant to the Escrow Agent (which opinion shall be satisfactory to the Escrow AgentSection 4(c) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealablebelow.

Release of Escrow. Subject to the provisions in the Standard Terms(1) After Closing, the Escrow Agent shall release the Escrowed Payment and the Preferred Stock as follows: (a) Upon the written instruction if approval has not been received by any of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basisPersons listed in Schedule 3, the Escrow Agent shall return to Investors any such amounts. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered make monthly written requests to each such Person for consent, pursuant to Sections 1.10(b)(17) and 1.10(b)(20), a minimum of three (3) times or until such Person has either responded with the wire instructions to be provided in writing by requested consent or explicitly refused such consent. Within thirty (30) days following the date upon which the Company to receives consent from a Person listed on Schedule 3 and as required by Section 1.10(b)(23) (the Escrow Agent. (d) Within five (5) days after receipt of joint written instructions signed by the Company “Post-Closing Consent”), as applicable, Purchaser and the Investors, or October 1, 2007, whichever occurs earlier, the escrow account Holder Representative shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, jointly execute and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions deliver to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide a written notice to all Investors, the Company and the Escrow Agent. (e) Notwithstanding the above, upon receipt by instructing the Escrow Agent to release from the Consent Escrow Amount to each Executing Selling Shareholder such Executing Selling Shareholder’s Interest of the aggregate amount equal to the amount in Schedule 3 set forth next to such Person’s name. If any Person listed on Schedule 3 makes a request for the repayment or termination of the respective amount of contract or subsidy (each such Person referred to herein as a “Dissenting Person”), and such request or termination leads to the Company’s repayment of all or part of the respective amount or issuance of a final and non-appealable judgment, order, decree decision of termination of the respective amount of the contract or award of a court of competent jurisdiction subsidy (a “Court OrderTermination Decision”), then, within thirty (30) days of such Termination Decision, Purchaser and the Escrow Agent Holder Representative shall jointly execute and deliver the Escrowed Payment and Preferred Stock in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion a written notice instructing the Escrow Agent to release from the Consent Escrow Amount to Purchaser the aggregate amount equal to the amount in Schedule 3 set forth next to the name of such Dissenting Persons, in case of a total repayment. In a case where the Termination Decision leads to a partial repayment, Purchaser and the Holder Representative shall be satisfactory jointly execute and deliver to the Escrow Agent) Agent a written notice instructing the Escrow Agent to release from the Consent Escrow Amount to Purchaser an amount equal to such actual repayment and to each Executing Selling Shareholder such Executing Selling Shareholder’s Interest of the balance of the amount in Schedule 3 set forth next to the effect name of such Dissenting Persons. Twelve (12) months after Closing (the “Consent Deadline”), if consents have not been received from all of the entities listed on Schedule 3 or a Person listed on Schedule 3 from whom consent is sought, if the requested consent has neither been provided nor explicitly refused and no request has been made by such Person for the repayment or termination of the respective amount of contract or subsidy (each such Person herein referred to as a “Silent Person”), then Purchaser and the Holder Representative shall jointly execute and deliver to the Escrow Agent a written notice instructing the Escrow Agent to release from the Consent Escrow Amount to each Executing Selling Shareholder such Executing Selling Shareholder’s Interest of the aggregate amount equal to the sum total of the amounts in Schedule 3 set forth next to each Silent Person’s name that have not previously been released pursuant to this Section 10.4(h)(1). The balance of the court issuing Consent Escrow Amount (if any) shall remain under escrow until final resolution of the Court Order has competent jurisdiction issue (i.e. the balance (or the relevant portion thereof) being distributed to the Executing Selling Shareholders if and when the related consents are obtained or if the relevant amounts have not been reclaimed before the expiration of the applicable statute of limitations, and to Purchaser otherwise). (2) On the Termination Date, Purchaser and the Holder Representative shall jointly execute and deliver to the Escrow Agent a written notice instructing the Escrow Agent to release from the Escrow Fund to each Executing Selling Shareholder such Executing Selling Shareholder’s Interest of the aggregate amount equal to: (i) the amount remaining in the Escrow Fund as of the Termination Date; minus (ii) the aggregate amount, as of the Termination Date, of the sum of the (x) Claimed Amounts, (y) Contested Amounts associated with all claims contained in Officer’s Claim Certificate that have not been finally resolved and paid prior to the Court Order is final Termination Date in accordance with this Section 10.4 (such unresolved claims being referred to as the “Unresolved Claims”) and non-appealable(y) the Tax Escrow Amount. (3) On the Tax Termination Date, Purchaser and the Holder Representative shall jointly execute and deliver to the Escrow Agent a written notice instructing the Escrow Agent to release from the Escrow Fund to each Executing Selling Shareholder such Executing Selling Shareholder’s Interest of the aggregate amount equal to: the amount remaining in the Escrow Fund as of the Tax Termination Date minus the Unresolved Claims.

Release of Escrow. Subject to the provisions in the Standard Termsof Section 4.2, the Escrow Agent shall release the Escrowed Payment Company Documents and Buyer’s Purchase Price and Buyer Documents following the Preferred Stock Closing as follows: (a) Upon On the written instruction Closing Date, subject to the satisfaction or waiver of the terms and conditions of this Agreement and the Securities Purchase Agreement, the Closing with respect to all Buyers shall occur when Buyer funds representing the Minimum Amount are transmitted by wire transfer of immediately available funds by all Buyers to the Escrow Agent. The Escrow Agent will simultaneously release the Company setting forth Documents to the Escrowed Payment Buyer and release the Buyer Documents and the Buyer’s Purchase Price to the Company except that: (i) the Lead Investor Fee will be returned on released to the Lead Investor, and (ii) an Investor amount of each Buyer’s Purchase Price equal to the Buyer’s Pro Rata Portion of the Shareholder Approval Holdback Amount (the “Withheld Cash”) and a number of shares of Preferred Stock having an aggregate Stated Value equal to the Buyer’s Pro Rata Portion of the Shareholder Approval Holdback Amount, along with a corresponding number of Warrants, subject to Section 3.1(h) based upon the Warrant Amount corresponding to the withheld shares of Preferred Stock, as described in the Securities Purchase Agreement (the “Withheld Securities”), shall be held back by Investor basisthe Escrow Agent following the Closing. If the Closing as to at least the Minimum Amount has not occurred by September 13, 2007, then within three (3) Business Days thereafter, the Escrow Agent shall return to Investors any such amounts. (b) From time to time until the Buyer’s Purchase Price and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued Buyer Documents to the Investors as set forth in such Company Release RequestBuyer, the Escrow Agent will release the Escrowed Payment, in the amount specified in and shall return the Company Release Request, Documents to the Company. (b) If, anytime following the Closing and prior to the Shareholder Approval Deadline, the Escrow Agent receives (and the Lead Investor confirms receipt of) copies of Irrevocable Written Consents of stockholders of the Company representing a majority of the Company’s outstanding voting shares as of the Trading Day immediately preceding the Original Issue Date, then within three (3) Business Days thereafter, the Escrow Agent shall (x) release to the Company the balance of the Shareholder Approval Holdback Amount, except for the Reduced Shareholder Approval Holdback Amount, which the Escrow Agent shall continue to retain, and (y) subject to Section 3.1(h), release to the Buyer the Related Preferred Stock Certificates and Warrants (a “First Partial Release”); (c) If, anytime following the Closing and prior to the Shareholder Approval Deadline, the Escrow Agent receives (and the Lead Investor confirms receipt of) written notice from the Company that the shareholders of the Company affirmatively approved of the Offering (“Shareholder Approval Notification”), then within three (3) Business Days thereafter, the Escrow Agent shall deliver all of the remaining Withheld Cash to the Company and all of the Withheld Securities to the Buyer. (d) If, as of the Shareholder Approval Deadline, the Escrow Agent has not received Shareholder Approval Notification (notwithstanding whether or not the Escrow Agent has received copies of the Irrevocable Written Consents referred to above), then within five (5) Business Days thereafter, the Escrow Agent shall deliver all of Buyer’s remaining Withheld Cash to the Buyer, toward the redemption price for an Exchange Cap Redemption, and shall return the corresponding Withheld Securities to the Company. (e) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (df) Within five (5) days after Notwithstanding the above, upon receipt by the Escrow Agent of joint written instructions ("Joint Instructions") signed by the Company and the InvestorsBuyer, or October 1, 2007, whichever occurs earlier, it shall deliver the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A Company Documents and Buyer Documents in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to terms of the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow AgentJoint Instructions. (eg) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “"Court Order”"), the Escrow Agent shall deliver the Escrowed Payment Company Documents and Preferred Stock Buyer Documents in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable. (h) Whenever the release of Warrants is to be made under this Agreement, if less than all of Buyer's Warrants are to be released, half of the Warrants to be released shall have an Initial Exercise Price of 100% of the Initial Conversion Price, and the remaining half shall have an Initial Exercise Price of 115% of the Initial Conversion Price.

Release of Escrow. Subject to the provisions in the Standard Termsof Section 4.2, the Escrow Agent shall release the Escrowed Payment Company Documents and the Preferred Stock Subscriber Documents as follows: (a) Upon On the written instruction of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basis, the Escrow Agent shall return to Investors any such amounts. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release RequestClosing Date, the Escrow Agent will simultaneously release the Escrowed Payment, in Company Documents to the amount specified in Subscriber and release the Subscriber Documents to the Company Release Requestexcept that the sum of $500,000 shall remain in escrow pending the receipt of the Approval no later than on the Approval Date as described in Section 9(v) of the Subscription Agreement. Once the Approval has been obtained, the balance of the Escrowed Payment will, within two business days of written proof of such approval is provided to Escrow Agent, such Approval be released to the Company. Upon the receipt of a Rejection (as defined in Section 9(v) of the Subscription Agreement), the balance of the Escrowed Payment will be returned pro-rata to Subscribers pursuant to their original investment amounts. On the Closing Date, the Escrow Agent will release: (i) the Broker’s Cash Fee and Broker’s Warrants will be released to the Broker; (ii) the Legal Fees will be released to the Subscriber’s attorneys; and (iii) the Security Agreement and Collateral Agent Agreement will be released to the Collateral Agent. (cb) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (dc) Within five (5) days after Notwithstanding the above, upon receipt by the Escrow Agent of joint written instructions (“Joint Instructions”) signed by the Company and the InvestorsSubscriber, or October 1, 2007, whichever occurs earlier, it shall deliver the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A Company Documents and Subscriber Documents in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to terms of the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow AgentJoint Instructions. (ed) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”), the Escrow Agent shall deliver the Escrowed Payment Company Documents and Preferred Stock Subscriber Documents in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable. Upon receipt of the Approval on or before the Approval Date, the balance of the Escrowed Payment will be released to the Company.

Release of Escrow. Subject to the provisions in the Standard Termsof Section 4.2, the Escrow Agent shall release the Escrowed Payment Company Documents and the Preferred Stock Subscriber Documents as follows: (a) Upon On the written instruction of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basisInitial Closing Date, the Escrow Agent shall return will simultaneously release the Initial Closing Company Documents to Investors any such amountsthe Subscriber and release the Subscription Agreement and the Initial Closing Purchase Price to the Company. The Security Agreement and Collateral Agent Agreement will also be released to the Collateral Agent identified therein. The Shares Escrow Agreement and Escrowed Stock will be released to the Escrow Agent identified in the Shares Escrow Agreement. The Legal Fees will be released to the Subscriber's attorneys and the Due Diligence Fee in connection with the Initial Closing Purchase Price will be released to the entity identified in Section 8(a) of the Subscription Agreement. (b) From time to time until and including September 30, 2007, upon On the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release RequestSecond Closing Date, the Escrow Agent will simultaneously release the Escrowed Payment, in Second Closing Company Documents to the amount specified in Subscriber and release the Second Closing Purchase Price to the Company Release Request, except that the Legal Fees will be released to the CompanySubscriber's attorneys and Due Diligence Fee in connection with the Second Closing Purchase Price will be delivered to the entity identified in Section 8(a) of the Subscription Agreement. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (d) Within five (5) days after Notwithstanding the above, upon receipt by the Escrow Agent of joint written instructions ("Joint Instructions") signed by the Company and the InvestorsSubscriber, or October 1, 2007, whichever occurs earlier, it shall deliver the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A Company Documents and Subscriber Documents in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to terms of the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow AgentJoint Instructions. (e) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “"Court Order”"), the Escrow Agent shall deliver the Escrowed Payment Company Documents and Preferred Stock Subscriber Documents in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject to the provisions in the Standard Terms, The Escrow Amount shall be held and invested by the Escrow Agent shall release the Escrowed Payment and the Preferred Stock as follows: (a) Upon the written instruction of the Company setting forth the Escrowed Payment to be returned on an Investor by Investor basis, the Escrow Agent shall return to Investors any such amounts. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent. (d) Within five (5) days after receipt of joint written instructions signed by the Company and the Investors, or October 1, 2007, whichever occurs earlier, the escrow account shall be closed. Promptly thereafter, all certificates for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore deliveredthe terms of the Escrow Agreement, and any remaining Escrowed Payments which shall specify that (i) the Escrow Funds in excess of $2 million shall be returned released to the Investors in accordance with percentages set forth Seller on Schedule B-1 attached hereto. From time the fifth Business Day following the first anniversary of the Closing Date; provided, however, that if any claim by an Indemnified Party pursuant to time Section IX shall have been properly asserted by any Buyer Indemnified Party pursuant to this Agreement on or prior to October 1the Survival Expiration Date and remains pending on the Survival Expiration Date (any such claim, 2007a “Pending Claim”), Investors may provide (a) the Escrow Funds released to the Seller on such date shall be the amount of Escrow Funds in excess of $2 million then held by the Escrow Agent, minus the aggregate amount of such Pending Claim and (b) any Escrow Funds in excess of $2 million following the Survival Expiration Date in respect of any such Pending Claim shall be released to the Seller upon resolution or (if applicable) satisfaction of such Pending Claim and (ii) the remaining Escrow Funds, other than any funds held in escrow related to any Pending Claims, shall be released to the Seller on the fifth Business Day following the second anniversary of the Closing Date; provided, however, that if any claim by an Indemnified Party pursuant to Section IX shall have been properly asserted by any Buyer Indemnified Party pursuant to this Agreement on or prior to the second anniversary of the Closing Date and remains pending on such date, (a) the Escrow Funds released to the Seller on the fifth Business Day following the second anniversary of the Closing Date shall be the remaining Escrow Funds minus the aggregate amount of such claim and (b) any Escrow Funds following such date in respect of any such claim shall be released to the Seller upon resolution or (if applicable) satisfaction of such claim. Each of Buyer and the Seller shall from time to time submit joint written instructions to the Escrow Agent to redesignate instructing the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, distribute the Company Escrow Funds in accordance with this Section 9.9 and the Escrow AgentAgreement. (e) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”), the Escrow Agent shall deliver the Escrowed Payment and Preferred Stock in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject to the provisions in the Standard Termsof Section 4.2, the Escrow Agent shall release the Escrowed Payment and the Preferred Stock Escrow Deposit as follows: (a) Upon receipt by the written instruction Escrow Agent of all components of the Company setting forth Escrow Deposit, the Escrow Agent will simultaneously release a copy of Xx. Xxxxxx'x Escrow Document to Xx. Xxxxx and Xx. Xxxxx'x Escrow Documents to Xx. Xxxxxx, and Xx. Xxxxxx shall distribute an original of the appropriate Put Agreement to each of the Founding Stockholders. (b) Upon receipt by the Escrow Agent of a written notice from a Founding Stockholder (an "EXERCISE NOTICE"), in the form of the Election to Exercise attached to the Put Agreement, stating that such Founding Stockholder desires to exercise his or its Put pursuant to the Put Agreement, stating the number of Put Shares (as defined in the Put Agreement) with respect to which the Founding Stockholder wishes to exercise such Put, and including evidence that the Triggering Event (as defined in the Put Agreement) has occurred and therefore the Founding Stockholder is entitled to receipt of that portion of the Escrowed Payment representing the number of Put Shares multiplied by $3.00 per share, in accordance with the provisions of the Put Agreement, and accompanied by the Founding Stockholder's stock certificate representing such Put Shares, properly endorsed in blank, and tender to be returned on an Investor by Investor basisthe Escrow Agent of such Founding Stockholders Put Agreement, the Escrow Agent shall return promptly send a copy of such Exercise Notice to Investors any such amounts. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, Xx. Xxxxx. If the Escrow Agent will release does not receive within five (5) business days from the date notice is given to Xx. Xxxxx, a notice (a "NOTICE OF OBJECTION") signed by Xx. Xxxxx stating the reasons for such objection, or if the Escrow Agent shall within such period receive a written consent signed by Xx. Xxxxx, then the Escrow Agent shall deliver the requested portion of Escrowed Payment to such Founding Stockholder in accordance with the Exercise Notice. In the event that the Founding Stockholder elects to exercise his or its put for less than the total number of shares subject to the put, upon Xx. Xxxxx'x agreement that the Founding Stockholder is entitled to receive the Purchase Price (as defined in the Put Agreement) for the shares being put pursuant to the Exercise Notice, the Founding Stockholder shall receive from the Escrow Agent, (i) the Purchase Price for the shares being put pursuant to the Exercise Notice, and (ii) such Founding Stockholder's Put Agreement, with the number of Put Shares (as defined in the Put Agreement) shown on the signature page thereof adjusted to reflect the Founding Stockholder's remaining Put Shares with respect to which the put has not been exercised. In the event that the Founding Stockholder tenders to the Escrow Agent a stock certificate representing a greater number of Put Shares than the number of Put Shares with respect to which the Founding Stockholder wishes to exercise the put, upon Xx. Xxxxx'x agreement that the Founding Stockholder is entitled to the Purchase Price for the Put Shares being so exercised, in addition to the deliveries from the Escrow Agent referred to above, the Founding Stockholder shall also receive from Xxxxx a stock certificate for Xxxxx Common Stock in an amount of shares equal to the number of Put Shares reflected on the stock certificate tendered to the Escrow Agent at the time of exercise of the put, less the number of Put Shares with respect to which the put has been exercised by the Founding Stockholder. If the Escrow Agent receives a Notice of Objection from Xx. Xxxxx within such five (5) day period stating the reason for the objection, then the Escrow Agent shall continue to hold the Escrowed Payment, in Payment until otherwise authorized and directed to distribute the amount specified in the Company Release Request, same pursuant to the Companyprovisions of Sections 3.1(e) or 3.1(f). (c) All funds Any time prior to October 9, 1998, Xx. Xxxxx shall be delivered entitled to present to the Company Escrow Agent a written notice stating that the rights of the Founding Stockholders under the Put Agreement have not and cannot become effective due to the impossibility of the occurrence of the Triggering Event (as defined in the Put Agreement), or that such rights have expired due to the passage of time (the "NOTICE OF NONEFFECTIVENESS OR EXPIRATION"). Such Notice of Noneffectiveness or Expiration shall be delivered signed by Xx. Xxxxx, shall present evidence demonstrating that the Triggering Event (as defined in the Put Agreement) cannot occur or that the rights of the Founding Stockholders under the Put Agreement have expired, and shall state that Xx. Xxxxx is entitled to receipt of the Escrowed Payment or any portion thereof remaining on deposit with the Escrow Agent, in accordance with the provisions of the Put Agreement. Upon receipt of the Notice of Noneffectiveness or Expiration, the Escrow Agent shall promptly send a copy of such Notice to Xx. Xxxxxx, on behalf of the Founding Stockholders. If the Escrow Agent does not receive within five (5) business days from the date notice is given to Xx. Xxxxxx, a Notice of Objection signed by Xx. Xxxxxx, on behalf of the Founding Stockholders, stating the reasons for such objection, or if the Escrow Agent shall within such period receive a written consent signed by Xx. Xxxxxx, on behalf of the Founding Stockholders, then the Escrow Agent shall deliver the Escrowed Payment or such portion thereof remaining on deposit with the Escrow Agent to Xx. Xxxxx in accordance with the Notice of Noneffectiveness or Expiration. If the Escrow Agent receives a Notice of Objection from Xx. Xxxxxx, on behalf of the Founding Stockholders, within such five (5) day period stating the reason for the objection, then the Escrow Agent shall continue to hold the Escrowed Payment until otherwise authorized and directed to distribute the same pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agentprovisions of Sections 3.1(e) or 3.1(f). (d) Within five (5) days after receipt of joint written instructions signed by the Company and the InvestorsOn October 10, or October 1, 2007, whichever occurs earlier1998, the escrow account Escrow Agent shall be closedpay over to Xx. Promptly thereafterXxxxx all of the Escrowed Payment remaining on deposit and in its possession against which a put has not yet been exercised, all certificates without the need for Preferred Stock shall be delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions notice to the Escrow Agent by Xx. Xxxxx or the consent to redesignate such payment by Xx. Xxxxxx, on behalf of the percentages set forth in Schedule B-1 in their sole discretion, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow AgentFounding Stockholders. (e) Notwithstanding Upon receipt by the aboveEscrow Agent of joint written instructions ("JOINT INSTRUCTIONS") signed by Xx. Xxxxx and Xx. Xxxxxx, upon on behalf of the Founding Stockholders, it shall deliver the Escrowed Payment in accordance with the terms of the Joint Instructions. (f) Upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court Order”"COURT ORDER"), the Escrow Agent shall deliver the Escrowed Payment and Preferred Stock in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.

Release of Escrow. Subject to the provisions in the Standard Terms, the The Escrow Agent shall release the Escrowed Payment and the Preferred Stock Shares as follows: (a) Upon In accordance with Section 1.07 of the written instruction Guarantee, and notwithstanding any provision to the contrary in the Note, the Guarantee, the Subscription Agreement, and the Side Letter, Investor has the right, in its sole and absolute discretion, to elect to withdraw Shares in connection with its conversion rights under the Note, in part or in whole, from the Shares in Escrow, regardless of whether a default has occurred, and as if and in lieu of the Company setting forth delivering Common Stock in satisfaction of its obligations under Section 8 of the Escrowed Payment Note. If Investor makes such an election under this Section 4.03(a), Investor shall receive from Escrow, in its sole and absolute discretion, either Restricted or Unrestricted Shares, on the same basis as the Company would have had to have delivered Common Stock under Section 8 of the Note, and for each such Share delivered from Escrow, the Company shall be relieved concomitantly of its obligation to deliver Common Stock on a share-for-share basis under Section 8 of the Note. Investor shall notify the Company of an election under this Section 4.03(a) in the Notice provided pursuant to Section 8(c) of the Note, with a copy of such Notice to be returned on an Investor by Investor basis, provided to the Escrow Agent and the Stock Escrow Agent. Nothing in this Section 4.03 shall return act to Investors limit the registration rights of the Investor as fully set for in Section vi of the Side Letter or relieve the Company from any such amountsof its obligations regarding registration of the Shares. (b) From time to time until and including September 30, 2007, upon the receipt by Escrow Agent of a Company Release Request, together with certificates representing the shares of Preferred Stock to be issued to the Investors as set forth in such Company Release Request, the Escrow Agent will release the Escrowed Payment, in the amount specified in the Company Release Request, to the Company. (c) All funds to be delivered to the Company shall be delivered pursuant to the wire instructions to be provided in writing Any objection by the Company to the release of Shares from Escrow Agent. in accordance with Section 4.03(a) must be delivered, in accordance with Section 5.08(b), to the Escrow Agent within two (d2) Within five (5) business days after receipt of joint the date of such Notice. If the Escrow Agent does NOT receive such objection within the time --- provided, time being of the essence, it shall release the Shares in accordance with the Notice. If the Escrow Agent receives a timely objection, it shall retain the Shares subject to further written instructions signed by the Company and the InvestorsInvestor or subject to any dispute resolution provided under Section 4.05. For purposes of this provision, or October 1, 2007, whichever occurs earlier, the escrow account a Notice shall not be closed. Promptly thereafter, all certificates for Preferred Stock shall be deemed to have been delivered to the Investors at the addresses set forth in Schedule A in accordance with Company Release Requests theretofore delivered, and any remaining Escrowed Payments shall be returned to the Investors in accordance with percentages set forth on Schedule B-1 attached hereto. From time to time on or prior to October 1, 2007, Investors may provide written instructions to the Escrow Agent to redesignate the percentages set forth in Schedule B-1 in their sole discretionon a particular day, provided that all Investors whose percentages are redesignated, or would be affected by such redesignations, confirm such written instructions to Escrow Agent by signing same and provide written notice to all Investors, the Company and the Escrow Agent. (e) Notwithstanding the above, upon receipt if it is received by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction after 5:00 p.m. New York time. (a “Court Order”), c) The Shares shall be held in escrow by the Escrow Agent until the Company has satisfied all of its obligations under the Note, the Guarantee, the Subscription Agreement and the Side Letter. The Escrow Agent may not return to the Guarantors the remainder of the Shares held in escrow pursuant to this Escrow Agreement unless and until they are notified in writing by all parties with a direction to do so. Any dispute as to the return of the Shares to the Guarantors shall deliver the Escrowed Payment and Preferred Stock be resolved in accordance with the Court OrderSection 4.05. Any Court Order It shall be accompanied by an opinion the Guarantors' sole responsibility to allocate the return of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealableshares, if any, as among them.