Common use of TEXTUAL CHANGES Clause in Contracts

TEXTUAL CHANGES. The following changes are made to the text of Article 2 of the Stock Purchase Agreement: (a) Section 2.02(d) of the Stock Purchase Agreement is hereby amended to read in its entirety as follows: “the Seller Parties shall deliver to Purchaser an amount equal to $4,000,000, by depositing such amount in certain bank accounts of the Company as designated by the Purchaser in consultation with the Company, and shall provide reasonable written or telephonic confirmation immediately prior to the Closing as to the amount of the funds held in such accounts.” (b) Section 2.03 of the Stock Purchase Agreement is hereby amended to read in its entirety as follows: (a) Notwithstanding the provisions of Section 2.02, Purchaser shall cause INI to deliver to the Escrow Agent a portion of the Closing Cash Payment otherwise deliverable to Sellers pursuant to Section 1.02(a) equal to the sum of Ten Million Dollars ($10,000,000) (the “Working Capital Escrow Amount”), to secure only Sellers’ obligation for the Working Capital adjustment described in Section 2.04. In addition, at the Closing, Purchaser shall cause INI to deliver to the Escrow Agent, on behalf of Sellers, the Unsecured Notes in the original issue amount, to be held in escrow as provided below, and the Common Stock received upon the conversion of the Unsecured Notes and the proceeds of the sale of the Common Stock issuable upon conversion pursuant to paragraph (c) below will be referred to herein as the “Escrow Amount”. (b) The Working Capital Escrow Amount and the Escrow Amount shall be held in escrow (the “Escrow”) in accordance with the terms of an escrow agreement to be mutually agreed upon by the Parties (the “Escrow Agreement”). Any amount remaining of the Working Capital Escrow Amount after settlement of the Working Capital adjustment pursuant to Section 2.04 shall be released to the Sellers’ Representative (as nominee for the account of Trust 1 and for the account of Trust 2) upon such settlement as provided therein; and any amount remaining of the Escrow Amount after settlement of the Seller Parties’ indemnification obligations pursuant to Article 10 and settlement Post-Closing Transaction Bonus obligations pursuant to Section 6.18 (as amended) shall be released to the Sellers’ Representative (as nominee for the account of Trust 1 and for the account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts or to resolve any amounts for Post-Closing Transaction Bonuses to be paid thereafter, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim), and to satisfy any amounts for Post-Closing Transaction Bonuses to be paid thereafter, with the remaining amounts released as aforesaid. (c) The Unsecured Notes delivered to the Escrow Agent as provided in Section 2.03(a) shall be held in the Escrow and shall be available for set-off pursuant to Section 10.08(b) and Section 6.18 (as amended). Sellers shall have the right to exchange their Unsecured Notes for Common Stock pursuant to the terms of the Unsecured Notes, in which case all such Common Stock shall be delivered to and held in the Escrow, and further shall have the right to sell any of such Common Stock held in the Escrow, provided, that upon any such sale 50% of the proceeds of such sale shall be delivered to and held in Escrow in lieu of such Common Stock to the extent so exchanged and 50% of such proceeds shall be released to the applicable Seller; provided, that in no event will the proceeds of any such sale held in Escrow pursuant to the foregoing provision exceed $75 million in the aggregate. Any remaining amount of the Unsecured Notes, Common Stock issuable upon exchange of the Unsecured Notes or cash after settlement of the Seller Parties’ indemnification obligations pursuant to Article 10 or settlement of Post-Closing Transaction Bonus obligations pursuant to Section 6.18 (as amended) shall be released to the Sellers’ Representative (as nominee for the account of Trust 1 and for the account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts or to satisfy any Post-Closing Transaction Bonuses to be paid thereafter, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim) and the amounts, if any, for Post-Closing Transaction Bonuses to be paid thereafter, with the remaining amounts released as aforesaid. For purposes of determining the number of shares of Common Stock required to satisfy a claim for indemnification or to satisfy the Post-Closing Transaction Bonuses to be paid thereafter, the value of the Common Stock for which all or any portion of the Unsecured Notes are exchanged shall be deemed to be the higher of (i) the price at which the Unsecured Notes were exchanged for such Common Stock and (ii) the market price for such Common Stock prevailing at the time the securities are released to Purchaser in satisfaction of a claim; provided, that for purposes of the $175 million limit provided in Section 10.07(a) of this Agreement, such value as so determined pursuant to the foregoing provisions will be credited against such $175 million if and to the extent that shares of Common Stock are so used to satisfy a claim for indemnification (which, for the avoidance of doubt, will not include any amounts with respect to Post-Closing Transaction Bonuses). The foregoing provisions do not modify or otherwise affect the provisions referenced in Section 7.09 of this Agreement. (d) With due regard to the limitations on liability contained in Article 10, nothing in this Agreement shall be construed as limiting any Seller Party’s liability for the Working Capital adjustment to the Working Capital Escrow Amount or for Purchaser Losses to the Escrow Amount and/or Notes, nor shall payments from the Working Capital Escrow Amount or the Escrow Amount be considered as liquidated damages for any breach under this Agreement or any other Transaction Agreement.”

TEXTUAL CHANGES. The following changes are made to the text of Article 2 Articles 6 and 7 of the Stock Purchase Agreement: (a) Section 2.02(d6.03(u) of the Stock Purchase Agreement is hereby amended to read in its entirety as follows: “the Seller Parties shall deliver to Purchaser an amount equal to $4,000,000Declare, by depositing such amount in certain bank accounts set aside or pay any dividend or distribution or make any direct or indirect redemption or repurchase of any of its outstanding equity interests, provided, that the Company shall not be prohibited by this Section 6.03(u) from declaring and paying dividends on its outstanding capital stock so long as designated by the Purchaser in consultation with such payments do not impair the Company, and shall provide reasonable written or telephonic confirmation immediately prior ’s ability to the Closing as to the amount satisfy Section 2.02(d) of the funds held in such accountsthis Agreement.” (b) Section 2.03 7.04(f) of the Stock Purchase Agreement is hereby amended to delete its current text and replace the same to read “[Reserved]”. (c) Section 7.11 of the Stock Purchase Agreement is hereby amended to include a new Section 7.11(e) which shall read in its entirety as follows: : “In the event the Company terminates the Company’s existing Directors & Officers and Employment Practices Liability Insurance policy with Lloyds of London (apolicy number: DE07AAFU) Notwithstanding the provisions of Section 2.02, Purchaser shall cause INI to deliver prior to the Escrow Agent a portion date that is the sixth year anniversary of the Closing Cash Payment otherwise deliverable to Sellers pursuant to Section 1.02(a) equal to the sum of Ten Million Dollars ($10,000,000) (the “Working Capital Escrow Amount”), to secure only Sellers’ obligation for the Working Capital adjustment described in Section 2.04. In addition, at the Closing, Purchaser shall cause INI to deliver to the Escrow Agent, on behalf of SellersDate, the Unsecured Notes in the original issue amount, to be held in escrow as provided below, and the Common Stock received upon the conversion of the Unsecured Notes and the proceeds of the sale of the Common Stock issuable upon conversion pursuant to paragraph (c) below will be referred to herein as the “Escrow Amount”. (b) The Working Capital Escrow Amount and the Escrow Amount Company shall be held in escrow (the “Escrow”) in accordance with the terms of an escrow agreement to be mutually agreed upon by the Parties (the “Escrow Agreement”). Any amount remaining of the Working Capital Escrow Amount after settlement of the Working Capital adjustment pursuant to Section 2.04 shall be released provide written notice to the Sellers’ Representative not less than thirty (as nominee for the account of Trust 1 30) days prior to such termination and for the account of Trust 2) upon such settlement as provided therein; and any amount remaining of the Escrow Amount after settlement of the Seller Parties’ indemnification obligations pursuant to Article 10 and settlement Post-Closing Transaction Bonus obligations pursuant to Section 6.18 (as amended) shall be released to cooperate in providing the Sellers’ Representative (as nominee for the account of Trust 1 and for the account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts or to resolve any amounts for Post-Closing Transaction Bonuses to be paid thereafterRepresentative, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim), and to satisfy any amounts for Post-Closing Transaction Bonuses to be paid thereafterat its expense, with the remaining amounts released an opportunity to purchase tail insurance coverage as aforesaid. (c) The Unsecured Notes delivered to the Escrow Agent as provided in Section 2.03(a) shall be held in the Escrow and shall be available for set-off pursuant to Section 10.08(b) and Section 6.18 (as amended). Sellers shall have the right to exchange their Unsecured Notes for Common Stock pursuant to the terms acts or omissions of the Unsecured Noteseither Founder, in which case all such Common Stock shall be delivered to and held in the Escrowcoverage, and further shall have the right to sell any of such Common Stock held in the Escrowif so purchased, provided, that upon will protect any such sale 50% of the proceeds of such sale shall be delivered to and held in Escrow in lieu of such Common Stock Founder from his acts or omissions to the extent so exchanged and 50% of such proceeds shall be released to the applicable Seller; provided, that in no event will the proceeds of any such sale held in Escrow pursuant to the foregoing provision exceed $75 million in the aggregate. Any remaining amount of the Unsecured Notes, Common Stock issuable upon exchange of the Unsecured Notes or cash after settlement of the Seller Parties’ indemnification obligations pursuant to Article 10 or settlement of Post-Closing Transaction Bonus obligations pursuant to Section 6.18 (as amended) shall be released to the Sellers’ Representative (as nominee for the account of Trust 1 and for the account of Trust 2) on the date that is twenty four (24) months after the Closing Date or on such later date as is necessary to resolve any disputes with respect to such amounts or to satisfy any Post-Closing Transaction Bonuses to be paid thereafter, except that any amounts retained after the date that is twenty four (24) months after the Closing Date shall only consist of those amounts which are necessary to satisfy the then pending claims for indemnification payable by the Seller Parties (assuming for these purposes only the validity of each such claim) and the amounts, if any, for Post-Closing Transaction Bonuses to be paid thereafter, with the remaining amounts released as aforesaid. For purposes of determining the number of shares of Common Stock required to satisfy a claim for indemnification or to satisfy the Post-Closing Transaction Bonuses to be paid thereafter, the value of the Common Stock for which all or any portion of the Unsecured Notes are exchanged shall be deemed to be the higher of (i) the price at which the Unsecured Notes were exchanged for such Common Stock and (ii) the market price for such Common Stock prevailing at the time the securities are released to Purchaser in satisfaction of a claim; provided, that for purposes of the $175 million limit provided in Section 10.07(a) of this Agreement, such value as so determined pursuant to the foregoing provisions will be credited against such $175 million if and to the extent that shares of Common Stock are so used to satisfy a claim for indemnification (which, for the avoidance of doubt, will not include any amounts with respect to Post-Closing Transaction Bonuses). The foregoing provisions do not modify or otherwise affect the provisions referenced in Section 7.09 of this Agreementcoverage.” (d) With due regard Prior to the limitations on liability contained Closing, the Parties shall enter into an Assignment Agreement with INI in Article 10, nothing in this Agreement shall be construed as limiting any Seller Party’s liability for the Working Capital adjustment form and substance similar to the Working Capital Escrow Amount form attached hereto as Annex G. Each of the Parties agree that they shall execute and deliver, or for Purchaser Losses cause to be executed and delivered from time to time, such instruments, documents, agreements, consents and assurances and take such other action as reasonably may be required to effectively assign and transfer to and vest in INI the Escrow Amount and/or Notes, nor shall payments from rights and obligations of the Working Capital Escrow Amount or the Escrow Amount be considered as liquidated damages for any breach under this Agreement or any other Transaction Stock Purchase Agreement.”