Common use of Tax Escrow Clause in Contracts

Tax Escrow. (a) Simultaneously with the Closing, if the Specified Tax Liability Condition has not been satisfied, the Tax Escrow Amount shall be withheld from the Closing Date Merger Consideration otherwise payable in respect of the Common Shares, Warrants and Stock Appreciation Rights and deposited by Parent into a separate account (the "Tax Escrow Account") with the Escrow Agent, pursuant to the Escrow Agreement. The Escrow Agent shall hold the Tax Escrow Fund and all interest and other amounts earned thereon in escrow pursuant to the Escrow Agreement. The amount so withheld from each Equityholder shall be equal to (i) the Tax Escrow Amount multiplied by (ii) such Equityholder's Applicable Percentage as set forth on Final Schedule I. The Tax Escrow Fund shall be distributed in accordance with this Section 2.16 and the terms of the Escrow Agreement. (b) Each of the parties hereto has determined that all the parties hereto share certain common interests in defending against the Pending Tax Claims. The Company shall, and shall cause the Company Subsidiaries to, use commercially reasonable efforts to satisfy in full the Specified Tax Liability Condition prior to Closing. The Company, at its sole expense (and any such expenses shall in no case be included in the definition of Specified Tax Liabilities), shall control (in its sole discretion) the defense, negotiation, compromise, and settlement of the Pending Tax Claims prior to the Closing, subject to the other requirements of this Section 2.16; provided, that Parent's prior written consent (not to be unreasonably withheld, delayed or conditioned) shall be required prior to the Company or any Company Subsidiary abandoning, compromising, settling or otherwise satisfying the Pending Tax Claims prior to Closing if the Specified Tax Liability Condition will not be satisfied prior to Closing. The Company shall use commercially reasonable efforts to provide regular updates to Parent on the status of the Pending Tax Claims as well as promptly provide copies of all emails, correspondence or other documentation received from, or provided to, the IRS or any Governmental Entity in connection with the Pending Tax Claims. (c) Following the Closing, Parent and the Surviving Company shall provide to the Equityholder Representative prompt written notice of any written or oral communications from the IRS or any Governmental Entity related to the Specified Tax Liabilities; provided that any written communication relating both to the Specified Tax Liabilities and other Tax liabilities may be appropriately redacted to the extent relating solely to the other Tax liabilities when provided to the Equityholder Representative. Following the Closing, with respect to any audit, examination, contest, litigation or other judicial, administrative or arbitral action, suit, hearing or proceeding before the IRS, any division or bureau thereof, or any other Governmental Entity, in each case solely with respect to the Specified Tax Liabilities involving any of Company, Surviving Company or any Company Subsidiary or preparation and filing of any amended state income Tax Returns solely related to the Specified Tax Liabilities (each a "Tax Proceeding"), the Equityholder Representative shall have the exclusive right to control, settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding for a period of one (1) year following the Closing Date; provided, that the Equityholder Representative shall use commercially reasonable efforts to promptly settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding; provided, further, that the consent of Parent shall be required (not to be unreasonably withheld, conditioned or delayed) for any settlement, resolution or other satisfaction of a Tax Proceeding to the extent the amount of such settlement, resolution, satisfaction or disposition plus the actual amount or reasonably expected amount to settle, resolve, satisfy or dispose of all other Tax Proceedings exceeds or reasonably would exceed the Tax Escrow Amount. Beginning one year and one day after the Closing Date, Parent and the Company shall have the exclusive right to control, settle, resolve or otherwise or dispose of any Tax Proceeding. (d) Following the Closing, promptly after any Pending Tax Claim has been settled, resolved or otherwise satisfied pursuant to this Section 2.16, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent (i) to release from the Tax Escrow Account to the Surviving Company or any Company Subsidiary an amount equal to the lesser of (A) the Specified Tax Liabilities due and owing by the Surviving Company or any Company Subsidiary as a result of the resolution of the Pending Tax Claim and (B) the amount remaining in the Tax Escrow Account and (ii) to release from the Tax Escrow Account an amount equal to the excess, if any, of (A) the applicable Pending Tax Claim Escrow Amount (including a pro rata portion of any interest earned thereon except to the extent specified in the Escrow Agreement) over (B) the amount described in clause (i)(A) of this sentence, which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the aggregate amount being released for the benefit of the Equityholders pursuant to this Section; provided that, and notwithstanding the above, the amount to be released pursuant to clause (ii) with respect to a Pending Tax Claim for federal Taxes shall be no greater than the amount that will result in the remaining balance in the Tax Escrow Account to equal $1,000,000 following release of such clause (ii) amount. Following the earlier of (i) the settlement, resolution or other satisfaction of all Pending Tax Claims and (ii) the two (2) year anniversary of the Closing Date, and after any payments described in the first sentence of this Section 2.16(d) have been made, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent to release any remaining funds from the Tax Escrow Account which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the amount then remaining in the Tax Escrow Account (e) Notwithstanding anything to the contrary contained herein, if the Specified Tax Liability Condition has been satisfied in full on or prior to the Closing Date, (i) the Tax Escrow Amount shall not be withheld from the Closing Date Merger Consideration and instead shall be paid to the Equityholders in accordance with this Agreement and (ii) the parties hereto shall promptly amend the form of Escrow Agreement attached hereto to reflect the deletion of the Tax Escrow Account.

Tax Escrow. an amount in cash equal to $2,000,000.00 (a) Simultaneously with the Closing, if the Specified “Tax Liability Condition has not been satisfied, the Escrow Amount”). The Tax Escrow Amount shall be withheld from the Closing Date Merger Consideration otherwise payable available to Buyer solely to satisfy any Seller indemnification obligations pursuant to and in respect of the Common Shares, Warrants and Stock Appreciation Rights and deposited by Parent into a separate account (the "Tax Escrow Account") accordance with the Escrow Agent, pursuant to the Escrow Agreement. The Escrow Agent shall hold the Tax Escrow Fund and all interest and other amounts earned thereon in escrow pursuant to the Escrow Agreement. The amount so withheld from each Equityholder shall be equal provisions of Article VIII applicable to (i) the Tax Escrow Amount multiplied by representations set forth in Section 3.9 with respect to state and local tax compliance, (ii) such Equityholder's Applicable Percentage as set forth on Final the disclosures in the second paragraph of Schedule I. The Tax Escrow Fund shall be distributed in accordance with this Section 2.16 and the terms of the Escrow Agreement. (b) Each of the parties hereto has determined that all the parties hereto share certain common interests in defending against the Pending Tax Claims. The Company shall3.8 , and shall cause the Company Subsidiaries to, use commercially reasonable efforts to satisfy in full the Specified Tax Liability Condition prior to Closing(iii) any Seller obligations under Section 7.7(e) or (g). The Company, at its sole expense (and any such expenses shall in no case be included in the definition For purposes of Specified Tax Liabilities), shall control (in its sole discretion) the defense, negotiation, compromise, and settlement distribution of the Pending Tax Claims prior to the Closing, subject to the other requirements of this Section 2.16; provided, that Parent's prior written consent (not to be unreasonably withheld, delayed or conditioned) shall be required prior to the Company or any Company Subsidiary abandoning, compromising, settling or otherwise satisfying the Pending Tax Claims prior to Closing if the Specified Tax Liability Condition will not be satisfied prior to Closing. The Company shall use commercially reasonable efforts to provide regular updates to Parent on the status of the Pending Tax Claims as well as promptly provide copies of all emails, correspondence or other documentation received from, or provided to, the IRS or any Governmental Entity in connection with the Pending Tax Claims. (c) Following the Closing, Parent and the Surviving Company shall provide to the Equityholder Representative prompt written notice of any written or oral communications from the IRS or any Governmental Entity related to the Specified Tax Liabilities; provided that any written communication relating both to the Specified Tax Liabilities and other Tax liabilities may be appropriately redacted to the extent relating solely to the other Tax liabilities when provided to the Equityholder Representative. Following the Closing, with respect to any audit, examination, contest, litigation or other judicial, administrative or arbitral action, suit, hearing or proceeding before the IRS, any division or bureau thereof, or any other Governmental Entity, in each case solely with respect to the Specified Tax Liabilities involving any of Company, Surviving Company or any Company Subsidiary or preparation and filing of any amended state income Tax Returns solely related to the Specified Tax Liabilities (each a "Tax Proceeding"), the Equityholder Representative shall have the exclusive right to control, settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding for a period of one (1) year following the Closing Date; provided, that the Equityholder Representative shall use commercially reasonable efforts to promptly settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding; provided, further, that the consent of Parent shall be required (not to be unreasonably withheld, conditioned or delayed) for any settlement, resolution or other satisfaction of a Tax Proceeding to the extent the amount of such settlement, resolution, satisfaction or disposition plus the actual amount or reasonably expected amount to settle, resolve, satisfy or dispose of all other Tax Proceedings exceeds or reasonably would exceed the Tax Escrow Amount, Seller shall submit to Buyer, not more frequently than once per month, a draft Disbursement Request (as defined in the Escrow Agreement). Beginning one year As long as the draft Disbursement Request is accompanied by reasonable documentation supporting the basis for the disbursement (including basis for amount(s) and one day after payee(s)) and sufficient funds for the Closing Datedisbursement remain in the Tax Escrow, Parent Buyer shall agree to the Disbursement Request and the Company it shall have the exclusive right to control, settle, resolve or otherwise or dispose of any Tax Proceeding. (d) Following the Closing, promptly after any Pending Tax Claim has been settled, resolved or otherwise satisfied pursuant to this Section 2.16, Parent and the Equityholder Representative shall deliver a joint written instruction be submitted to the Escrow Agent, in the form required by . Buyer hereby agrees not make to any claim under the Escrow Agreement, instructing the Escrow Agent (i) to release from Agreement for any portion of the Tax Escrow Account to Amount for any claim other than those described in this Section 7.11(b) and shall take all actions required or reasonably requested by Seller, including a joint instruction with respect thereto, for the Surviving Company or release of any Company Subsidiary an amount equal to the lesser of (A) the Specified remaining Tax Liabilities due and owing by the Surviving Company or any Company Subsidiary as a result of the resolution of the Pending Tax Claim and (B) the amount remaining in the Tax Escrow Account and (ii) to release from the Tax Escrow Account an amount equal to the excess, if any, of (A) the applicable Pending Tax Claim Escrow Amount (including a pro rata portion not then subject to claims contemplated by this Section 7.11(b)) upon the expiration of any interest earned thereon except to the extent specified Escrow Period (as defined in the Escrow Agreement) over (B) the amount described in clause (i)(A) of this sentence, which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the aggregate amount being released for the benefit of the Equityholders pursuant to this Section; provided that, and notwithstanding the above, the pendency or amount to be released pursuant to clause (ii) of any claim with respect to the matters described in Section 7.11(a). Buyer hereby agrees not to make any claim under the Escrow Agreement for any portion of the Indemnity Escrow Amount for any claim other than those described in Section 7.11(a) and shall take all actions required or reasonably requested by Seller, including a Pending Tax Claim joint instruction with respect thereto, for federal Taxes shall be no greater than the amount that will result in the remaining balance in the Tax Escrow Account to equal $1,000,000 following release of such clause any remaining Indemnity Escrow Amount (iinot then subject to claims contemplated by Section 7.11(a)) amount. Following upon the earlier of (i) the settlement, resolution or other satisfaction of all Pending Tax Claims and (ii) the two (2) year anniversary expiration of the Closing Date, and after Escrow Period notwithstanding the pendency or amount of any payments claim with respect to the matters described in the first sentence of this Section 2.16(d) have been made, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent to release any remaining funds from the Tax Escrow Account which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the amount then remaining in the Tax Escrow Account (e) Notwithstanding anything to the contrary contained herein, if the Specified Tax Liability Condition has been satisfied in full on or prior to the Closing Date, (i) the Tax Escrow Amount shall not be withheld from the Closing Date Merger Consideration and instead shall be paid to the Equityholders in accordance with this Agreement and (ii) the parties hereto shall promptly amend the form of Escrow Agreement attached hereto to reflect the deletion of the Tax Escrow Account7.11(b).

Tax Escrow. (a) Simultaneously with the Closing, if the Specified Tax Liability Condition has not been satisfied, the Tax Escrow Amount shall be withheld from the Closing Date Merger Consideration otherwise payable in respect of the Common Shares, Warrants and Stock Appreciation Rights and deposited by Parent into a separate account (the "Tax Escrow Account") with the Escrow Agent, pursuant to the Escrow Agreement. The Escrow Agent shall hold the Tax Escrow Fund and all interest and other amounts earned thereon in escrow pursuant to the Escrow Agreement. The amount so withheld from each Equityholder shall be equal to (i) the Tax Escrow Amount multiplied by (ii) such Equityholder's Applicable Percentage as set forth on Final Schedule I. The Tax Escrow Fund shall be distributed in accordance with this Section 2.16 and the terms of the Escrow Agreement. (b) Each of the parties hereto has determined that all the parties hereto share certain common interests in defending against the Pending Tax Claims. The Company shall, and shall cause the Company Subsidiaries to, use commercially reasonable efforts to satisfy in full the Specified Tax Liability Condition prior to Closing. The Company, at its sole expense (and any such expenses shall in no case be included in the definition of Specified Tax Liabilities), shall control (in its sole discretion) the defense, negotiation, compromise, and settlement of the Pending Tax Claims prior to the Closing, subject to the other requirements of this Section 2.16; provided, that Parent's prior written consent (not to be unreasonably withheld, delayed or conditioned) shall be required prior to the Company or any Company Subsidiary abandoning, compromising, settling or otherwise satisfying the Pending Tax Claims prior to Closing if the Specified Tax Liability Condition will not be satisfied prior to Closing. The Company shall use commercially reasonable efforts to provide regular updates to Parent on the status of the Pending Tax Claims as well as promptly provide copies of all emails, correspondence or other documentation received from, or provided to, the IRS or any Governmental Entity in connection with the Pending Tax Claims. (c) Following the Closing, Parent and the Surviving Company shall provide to the Equityholder Representative prompt written notice of any written or oral communications from the IRS or any Governmental Entity related to the Specified Tax Liabilities; provided that any written communication relating both to the Specified Tax Liabilities and other Tax liabilities may be appropriately redacted to the extent relating solely to the other Tax liabilities when provided to the Equityholder Representative. Following the Closing, with respect to any audit, examination, contest, litigation or other judicial, administrative or arbitral action, suit, hearing or proceeding before the IRS, any division or bureau thereof, or any other Governmental Entity, in each case solely with respect to the Specified Tax Liabilities involving any of Company, Surviving Company or any Company Subsidiary or preparation and filing of any amended state income Tax Returns solely related to the Specified Tax Liabilities (each a "Tax Proceeding"), the Equityholder Representative shall have the exclusive right to control, settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding for a period of one (1) year following the Closing Date; provided, that the Equityholder Representative shall use commercially reasonable efforts to promptly settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding; provided, further, that the consent of Parent shall be required (not to be unreasonably withheld, conditioned or delayed) for any settlement, resolution or other satisfaction of a Tax Proceeding to the extent the amount of such settlement, resolution, satisfaction or disposition plus the actual amount or reasonably expected amount to settle, resolve, satisfy or dispose of all other Tax Proceedings exceeds or reasonably would exceed the Tax Escrow Amount. Beginning one year and one day after the Closing Date, Parent and the Company shall have the exclusive right to control, settle, resolve or otherwise or dispose of any Tax Proceeding. (d) Following the Closing, promptly after any Pending Tax Claim has been settled, resolved or otherwise satisfied pursuant to this Section 2.16, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent (i) to release from the Tax Escrow Account to the Surviving Company or any Company Subsidiary an amount equal to the lesser of (A) the Specified Tax Liabilities due and owing by the Surviving Company or any Company Subsidiary as a result of the resolution of the Pending Tax Claim and (B) the amount remaining in the Tax Escrow Account and (ii) to release from the Tax Escrow Account an amount equal to the excess, if any, of (A) the applicable Pending Tax Claim Escrow Amount (including a pro rata portion of any interest earned thereon except to the extent specified in the Escrow Agreement) over (B) the amount described in clause (i)(A) of this sentence, which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the aggregate amount being released for the benefit of the Equityholders pursuant to this Section; provided that, and notwithstanding the above, the amount to be released pursuant to clause (ii) with respect to a Pending Tax Claim for federal Taxes shall be no greater than the amount that will result in the remaining balance in the Tax Escrow Account to equal $1,000,000 following release of such clause (ii) amount. Following the earlier of (i) the settlement, resolution or other satisfaction of all Pending Tax Claims and (ii) the two (2) year anniversary of the Closing Date, and after any payments described in the first sentence of this Section 2.16(d) have been made, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent to release any remaining funds from the Tax Escrow Account which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the amount then remaining in the Tax Escrow Account (e) Notwithstanding anything to the contrary contained hereinin this Article 3, if a Fee Mortgagee requires monthly escrow payments for Impositions, Lessee shall, upon Lessor’s request, deposit with the Specified Tax Liability Condition has Lessor (or any Fee Mortgagee designated by Lessor in writing) 1/12th of the annual Impositions as estimated by Lessor(or any such Fee Mortgagee). On the 1st day of each and every calendar month thereafter during the Term of this Lease, Lessee shall deposit with the Lessor (or any Fee Mortgagee designated by Lessor in writing), to be held by the Lessor (or such Fee Mortgagee), a sum equal to 1/12th of the annual Impositions for each then current or ensuing year. In the event that the amount of the Impositions shall not have been satisfied in full on fixed at the time when any such monthly deposit is required to be made, Lessee shall make such deposit based upon the amount of the Imposition for the immediately preceding year, subject to adjustment as and when the amount of such Impositions is ascertained. Lessee shall provide Lessor with copies of tax bills within five (5) days after receipt thereof by Lessee. All sums deposited with the Lessor (or prior Fee Mortgagee) pursuant to this Section shall be applied to the Closing Datepayment of Impositions. No interest shall accrue on the sums so deposited. In the event the sums deposited hereunder are not sufficient to pay the Impositions when due, then Lessee shall, within ten (i10) days of notice of the Tax Escrow Amount insufficiency, deposit with the Lessor (or Fee Mortgagee, as applicable) any such deficiency and shall not be withheld from the Closing Date Merger Consideration and instead also deposit such additional sums as shall be paid necessary to ensure that the amounts deposited hereunder plus such deposits as are required to be made in the future hereunder are sufficient to pay all Impositions then due or which will become due. In the event of a conveyance by Lessor of its interest in and to the Equityholders in accordance Demised Premises, Lessor shall have no further liability with this Agreement and (ii) respect to the parties hereto shall promptly amend deposits for Impositions upon delivery thereof by Lessor to the form of Escrow Agreement attached hereto to reflect transferee, provided that the deletion transferee of the Tax Escrow AccountLessor assumes the Lessor’s liability hereunder.

Tax Escrow. The parties acknowledge Purchaser’s obligation to withhold a portion of the Purchase Consideration pursuant to the purchase price holdback requirements of the laws of each State in which the Business is conducted does business (a) Simultaneously with the Closing, if the Specified Tax Liability Condition has not been satisfiedcollectively, the Tax “State Codes”). The Escrow Amount shall be withheld from the Closing Date Merger Consideration otherwise payable in respect of the Common Shares, Warrants and Stock Appreciation Rights and deposited by Parent into a separate account (the "Tax Escrow Account") with the Escrow Agent, Funds being held pursuant to the Escrow AgreementAgreement shall serve as Purchaser’s Purchase Consideration holdback for purposes of satisfying the State Codes (collectively, the “Tax Holdback Provisions”). The Escrow Agent shall hold the Tax Escrow Fund and all interest and other amounts earned thereon in escrow pursuant to the Escrow Agreement. The amount so withheld from each Equityholder shall be equal to After Purchaser (i) the receives from Seller a copy of a letter, certificate or any other reasonable documentation issued by each applicable State Department of Revenue, State Tax Escrow Amount multiplied by Commissioner or such other applicable governing body (iieach a “Commissioner”) such Equityholder's Applicable Percentage as set forth on Final Schedule I. The Tax Escrow Fund shall be distributed in accordance with this Section 2.16 and the terms of the Escrow Agreement. that is sufficient to evidence that (ba) Each of the parties hereto Seller has determined that paid all the parties hereto share certain common interests in defending against the Pending Tax Claims. The Company shall, and shall cause the Company Subsidiaries to, use commercially reasonable efforts to satisfy in full the Specified Tax Liability Condition prior to Closing. The Company, at its sole expense (and any such expenses shall in no case be included taxes described in the definition of Specified Tax Liabilities), shall control (in its sole discretion) the defense, negotiation, compromise, and settlement of the Pending Tax Claims prior to the Closing, subject to the other requirements of this Section 2.16; provided, that Parent's prior written consent (not to be unreasonably withheld, delayed or conditioned) shall be required prior to the Company or any Company Subsidiary abandoning, compromising, settling or otherwise satisfying the Pending Tax Claims prior to Closing if the Specified Tax Liability Condition will not be satisfied prior to Closing. The Company shall use commercially reasonable efforts to provide regular updates to Parent on the status of the Pending Tax Claims as well as promptly provide copies of all emails, correspondence or other documentation received from, or provided to, the IRS or any Governmental Entity applicable State Codes which accrued in connection with the Pending Tax Claims. (c) Following the Closing, Parent and the Surviving Company shall provide to the Equityholder Representative prompt written notice of any written or oral communications from the IRS or any Governmental Entity related to the Specified Tax Liabilities; provided that any written communication relating both to the Specified Tax Liabilities and other Tax liabilities may be appropriately redacted to the extent relating solely to the other Tax liabilities when provided to the Equityholder Representative. Following the Closing, with respect to any audit, examination, contest, litigation or other judicial, administrative or arbitral action, suit, hearing or proceeding before the IRS, any division or bureau thereof, or any other Governmental Entity, in each case solely with respect to the Specified Tax Liabilities involving any of Company, Surviving Company or any Company Subsidiary or preparation and filing of any amended state income Tax Returns solely related to the Specified Tax Liabilities (each a "Tax Proceeding"), the Equityholder Representative shall have the exclusive right to control, settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding for a period of one (1) year following the Closing Date; provided, that the Equityholder Representative shall use commercially reasonable efforts to promptly settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding; provided, further, that the consent of Parent shall be required (not to be unreasonably withheld, conditioned or delayed) for any settlement, resolution or other satisfaction of a Tax Proceeding to the extent the amount of such settlement, resolution, satisfaction or disposition plus the actual amount or reasonably expected amount to settle, resolve, satisfy or dispose of all other Tax Proceedings exceeds or reasonably would exceed the Tax Escrow Amount. Beginning one year and one day after the Closing Date, Parent and the Company shall have the exclusive right to control, settle, resolve or otherwise or dispose of any Tax Proceeding. (d) Following the Closing, promptly after any Pending Tax Claim has been settled, resolved or otherwise satisfied pursuant to this Section 2.16, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent (i) to release from the Tax Escrow Account to the Surviving Company or any Company Subsidiary an amount equal to the lesser of (A) the Specified Tax Liabilities due and owing by the Surviving Company or any Company Subsidiary as a result of the resolution of the Pending Tax Claim and (B) the amount remaining in the Tax Escrow Account and (ii) to release from the Tax Escrow Account an amount equal to the excess, if any, of (A) the applicable Pending Tax Claim Escrow Amount (including a pro rata portion of any interest earned thereon except to the extent specified in the Escrow Agreement) over (B) the amount described in clause (i)(A) of this sentence, which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the aggregate amount being released for the benefit of the Equityholders pursuant to this Section; provided that, and notwithstanding the above, the amount to be released pursuant to clause (ii) with respect to a Pending Tax Claim for federal Taxes shall be no greater than the amount that will result in the remaining balance in the Tax Escrow Account to equal $1,000,000 following release of such clause (ii) amount. Following the earlier of (i) the settlement, resolution or other satisfaction of all Pending Tax Claims and (ii) the two (2) year anniversary of Business through the Closing Date, and after any payments described in the first sentence of this Section 2.16(d(b) Purchaser shall have been madeno successor liability for such taxes and will not be held personally liable for such taxes (each a “No Tax Due Letter”), Parent and the Equityholder Representative then Purchaser shall deliver a joint written instruction no longer be entitled to the Escrow Agent, in the form required by the Escrow Agreement, instructing cause the Escrow Agent to release any remaining funds from portion of the Escrow Funds for purposes of complying with the applicable State’s Tax Holdback Provisions. If, however, any Commissioner pursues a claim against Purchaser for unpaid taxes of Seller, the parties agree that Purchaser may cause the Escrow Account which shall be promptly distributed Agent to disburse directly to such Commissioner such portion of the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation RightsEscrow Funds, in accordance herewith and with the manner contemplated in the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal as may be necessary to (x) satisfy such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) claim. Seller’s sole recourse for the amount then remaining in so paid to any Commissioner by Purchaser or the Tax Escrow Account (e) Notwithstanding anything to Agent shall be against the contrary contained herein, if applicable State and the Specified Tax Liability Condition has been satisfied in full on applicable Commissioner and not against Purchaser or prior to Escrow Agent. Immediately following the Closing Date, (i) Seller will diligently, continuously and in good faith pursue the receipt of a No Tax Escrow Amount shall not be withheld Due Letter from the Closing Date Merger Consideration and instead shall be paid to the Equityholders in accordance with this Agreement and (ii) the parties hereto shall promptly amend the form of Escrow Agreement attached hereto to reflect the deletion of the Tax Escrow Accounteach Commissioner.

Tax Escrow. The parties acknowledge Purchaser may have an obligation to withhold a portion of the Purchase Consideration pursuant to the purchase price holdback requirements of those provisions of state law described on Schedule 4.9 to this Agreement (a) Simultaneously with the Closing, if the Specified Tax Liability Condition has not been satisfiedeach state identified on such schedule a "State" and collectively, the Tax Escrow Amount shall be withheld from the Closing Date Merger Consideration otherwise payable in respect "States" and each such provision of the Common Sharesstate law a "State Code" and collectively, Warrants and Stock Appreciation Rights and deposited by Parent into a separate account (the "Tax State Codes"). The Escrow Account") with the Escrow Agent, Funds being held pursuant to the Escrow AgreementAgreement shall serve as Purchaser's Purchase Consideration holdback for purposes of satisfying the State Codes. The Escrow Agent shall hold Within 30 days following the Tax Escrow Fund and all interest and other amounts earned thereon in escrow Closing, Seller will submit a written notice to each State pursuant to the Escrow Agreement. The amount so withheld from each Equityholder State Codes identified in Section A of Schedule 4.9 (and shall be equal send Purchaser a copy of such written notice) pursuant to (i) the Tax Escrow Amount multiplied by (ii) such Equityholder's Applicable Percentage as set forth on Final Schedule I. The Tax Escrow Fund shall be distributed in accordance with this Section 2.16 and the terms of the Escrow Agreement. (b) Each of the parties hereto has determined that all the parties hereto share certain common interests in defending against the Pending Tax Claims. The Company shallapplicable State Code requesting, and shall cause the Company Subsidiaries to, thereafter Seller will use commercially reasonable efforts to satisfy in full obtain, such response contemplated by the Specified applicable State Code to the effect that Purchaser shall have no successor liability for any of Seller's tax obligations relating to such State Code (each a "No Tax Liability Condition prior to ClosingDue Letter"). The Company, at its sole expense (and any such expenses shall in no case be included in the definition Also within 30 days of Specified Tax Liabilities), shall control (in its sole discretion) the defense, negotiation, compromise, and settlement of the Pending Tax Claims prior to the Closing, subject Purchaser shall submit a written notice to each State pursuant to the other requirements State Codes identified in Section B of this Section 2.16; provided, that Parent's prior Schedule 4.9 (and shall send Seller a copy of such written consent (not to be unreasonably withheld, delayed or conditionednotice) shall be required prior pursuant to the Company or any Company Subsidiary abandoningapplicable State Code requesting, compromising, settling or otherwise satisfying the Pending Tax Claims prior to Closing if the Specified Tax Liability Condition and thereafter Purchaser will not be satisfied prior to Closing. The Company shall use commercially reasonable efforts to provide regular updates to Parent on the status of the Pending obtain, a No Tax Claims as well as promptly provide copies of all emails, correspondence or other documentation received from, or provided to, the IRS or any Governmental Entity in connection with the Pending Tax Claims. (c) Following the Closing, Parent and the Surviving Company shall provide to the Equityholder Representative prompt written notice of any written or oral communications from the IRS or any Governmental Entity related to the Specified Tax Liabilities; provided that any written communication relating both to the Specified Tax Liabilities and other Tax liabilities may be appropriately redacted to the extent relating solely to the other Tax liabilities when provided to the Equityholder Representative. Following the Closing, Due Letter with respect to such State Code. Seller shall reasonably cooperate with Purchaser's efforts to obtain any auditsuch No Tax Due Letter, examinationincluding, contestwithout limitation, litigation or other judicial, administrative or arbitral action, suit, hearing or proceeding before making Seller's records available for audit upon the IRS, any division or bureau thereof, or any other Governmental Entity, in each case solely with respect to the Specified Tax Liabilities involving any of Company, Surviving Company or any Company Subsidiary or preparation and filing request of any amended state income Tax Returns solely related to the Specified Tax Liabilities (each a "Tax Proceeding"), the Equityholder Representative shall have the exclusive right to control, settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding for a period of one (1) year following the Closing Date; provided, that the Equityholder Representative shall use commercially reasonable efforts to promptly settle, resolve or otherwise satisfy or dispose of any such Tax Proceeding; provided, further, that the consent of Parent shall be required (not to be unreasonably withheld, conditioned or delayed) for any settlement, resolution or other satisfaction applicable State. Upon receipt of a No Tax Proceeding Due Letter from a State, Purchaser shall no longer be entitled to the extent the amount of such settlement, resolution, satisfaction or disposition plus the actual amount or reasonably expected amount to settle, resolve, satisfy or dispose of all other Tax Proceedings exceeds or reasonably would exceed the Tax Escrow Amount. Beginning one year and one day after the Closing Date, Parent and the Company shall have the exclusive right to control, settle, resolve or otherwise or dispose of any Tax Proceeding. (d) Following the Closing, promptly after any Pending Tax Claim has been settled, resolved or otherwise satisfied pursuant to this Section 2.16, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing the Escrow Agent (i) to release from the Tax Escrow Account to the Surviving Company or any Company Subsidiary an amount equal to the lesser of (A) the Specified Tax Liabilities due and owing by the Surviving Company or any Company Subsidiary as a result of the resolution of the Pending Tax Claim and (B) the amount remaining in the Tax Escrow Account and (ii) to release from the Tax Escrow Account an amount equal to the excess, if any, of (A) the applicable Pending Tax Claim Escrow Amount (including a pro rata portion of any interest earned thereon except to the extent specified in the Escrow Agreement) over (B) the amount described in clause (i)(A) of this sentence, which shall be promptly distributed to the (I) Paying Agent, for further distribution to the Stockholders and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such Equityholder's Applicable Percentage as set forth on Final Schedule I multiplied by (y) the aggregate amount being released for the benefit of the Equityholders pursuant to this Section; provided that, and notwithstanding the above, the amount to be released pursuant to clause (ii) with respect to a Pending Tax Claim for federal Taxes shall be no greater than the amount that will result in the remaining balance in the Tax Escrow Account to equal $1,000,000 following release of such clause (ii) amount. Following the earlier of (i) the settlement, resolution or other satisfaction of all Pending Tax Claims and (ii) the two (2) year anniversary of the Closing Date, and after any payments described in the first sentence of this Section 2.16(d) have been made, Parent and the Equityholder Representative shall deliver a joint written instruction to the Escrow Agent, in the form required by the Escrow Agreement, instructing cause the Escrow Agent to release any remaining funds from portion of the Escrow Funds for purposes of paying the tax that is the subject of such No Tax Escrow Account Due Letter. With respect to any tax for which shall be promptly distributed a No Tax Due Letter has not been received (provided, in the case of those State Codes identified in Section B of Schedule 4.9, that Purchaser has complied with the requirements above and has used commercially reasonable efforts to obtain the related No Tax Due Letter), if any State pursues a claim against Purchaser for unpaid taxes of Seller for which Purchaser is not obligated pursuant to the (I) Paying AgentTransaction Documents, for further distribution the parties agree that Purchaser may apply the provisions of Article VI with respect to such claim. Provided Purchaser has complied with the Stockholders terms of this Agreement and the holders of Warrants and (II) Surviving Company, for further distribution to the holders of Stock Appreciation Rights, in accordance herewith and with the Escrow Agreement, with each Equityholder receiving his, her or its pro rata amount thereof, equal to (x) such EquityholderSeller's Applicable Percentage as set forth on Final Schedule I multiplied by (y) sole recourse for the amount then remaining in so paid to any State by Purchaser or the Escrow Agent shall be against the applicable State and not against Purchaser or Escrow Agent. If Purchaser has not received a No Tax Escrow Account (e) Notwithstanding anything to Due Letter from any particular State by the contrary contained herein, if end of the Specified Tax Liability Condition has been satisfied in full on or prior to 12th month following the Closing Date, (i) Purchaser and Seller shall reasonably cooperate to obtain such letter as soon as practicable, and if Seller does not cooperate as reasonably requested by Purchaser then Purchaser may take such steps as may be reasonable under the circumstances in order to obtain such No Tax Escrow Amount shall not be withheld from Due Letter on or before the end of the 23rd month following the Closing Date Merger Consideration and instead Date. The provisions of this Section shall be paid to survive the Equityholders in accordance with this Agreement and (ii) the parties hereto shall promptly amend the form of Escrow Agreement attached hereto to reflect the deletion of the Tax Escrow AccountClosing.