Common use of Indemnification Holdback Clause in Contracts

Indemnification Holdback. (a) Notwithstanding anything to the contrary herein, as a partial mechanism to satisfy the obligations of Seller and Seller Parent set forth in Article VII, an aggregate of $[***] of the Purchase Price (the “Indemnification Holdback Amount”) shall not be paid to Seller at the Closing, but shall instead be withheld by ▇▇▇▇▇, and thereafter paid to Seller as set forth in this Section 1.3.2(a) or to Buyer as set forth in Article VII (the aggregate amount of cash so held by ▇▇▇▇▇, from time to time, the “Indemnification Holdback Fund”). Within five Business Days following the date that is [***] months after the Closing Date (the “Release Date”), Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior to the Release Date, (i) the Indemnification Holdback Fund, less (ii) the sum of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled Indemnification Claim by any Indemnified Party, and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified Party. Promptly following the final resolution of, and full payment or credit in connection with, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining portion of the Indemnification Holdback Fund. The Indemnification Holdback Fund shall not accrue interest. To the extent required by Applicable Law, a portion of any amounts released from the Indemnification Holdback Fund may be treated and reported for U.S. federal income Tax purposes as imputed interest. (b) The rights of Seller to receive payment from the Indemnification Holdback Fund is personal to Seller and is not transferable or assignable, and any purported transfer or assignment shall be void.

Indemnification Holdback. (a) Notwithstanding anything to the contrary hereinAt Closing, as a partial mechanism to satisfy the obligations of Seller and Seller Parent set forth in Article VII, an aggregate of $[***] 5,850,000 of the Purchase Price will be held back by the Purchaser as security of the indemnification obligations of Parent and Seller under Section 8.1 hereof (the “"Indemnification Holdback Amount”) shall not be paid Holdback"); provided, however, that, subject to Seller at the Closing, but shall instead be withheld by ▇▇▇▇▇, and thereafter paid to Seller as other limitations set forth in this Section 1.3.2(a) or herein, Purchaser shall be entitled to Buyer as set forth in Article VII (the aggregate amount of cash so held by ▇▇▇▇▇, from time to time, the “Indemnification Holdback Fund”). Within five Business Days seek indemnification hereunder following the date that is [***] months after the Closing Date (the “Release Date”), Buyer or its Affiliate shall pay to Seller by wire transfer release of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior to the Release Date, (i) the Indemnification Holdback Fund, less (ii) the sum of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled Indemnification Claim by any Indemnified Party, and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified PartyHoldback. Promptly following the final resolution of, and full payment or credit in connection with, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining Any portion of the Indemnification Holdback Fund. The Indemnification not previously released to Purchaser as a result of an indemnification claim by Purchaser shall be released to Seller at the end of the Holdback Fund shall not accrue interest. To the extent required by Applicable LawPeriod; provided, however, that a portion of any amounts released from the Indemnification Holdback, which, in the reasonable judgment of Purchaser, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to Parent and/or Seller prior to termination of the Holdback Fund may Period with respect to facts and circumstances existing prior to expiration of the Holdback Period, shall be treated and reported for U.S. federal income Tax purposes as imputed interestretained by Purchaser until such claims have been resolved. (b) The rights On the Release Date, Purchaser shall pay to Seller any portion of Seller to receive payment from the Indemnification Holdback Fund is personal not previously paid to Purchaser for indemnification hereunder, less the dollar amount equal to any portion of the Indemnification Holdback subject to retention by Purchaser in accordance with Section 8.2(a) with respect to any pending but unresolved indemnification claims of Purchaser. Any portion of the Indemnification Holdback held as a result of this Section 8.2(b) shall be paid to Seller and is not transferable or assignable, and any purported transfer or assignment shall be voidretained by Purchaser (as appropriate) promptly upon resolution of each specific claim involved.

Indemnification Holdback. (a) 250,000 Shares (prior to any adjustment pursuant to Section 2.05(a)) shall be placed in an escrow account (the "ESCROW FUND") with Greater Bay Trust Company (the "ESCROW AGENT") following the Closing to be available for indemnification claims pursuant to Section 5.01, if any (the "INDEMNIFICATION SHARES") for a period not to exceed three hundred sixty (360) days following the Closing (the "ESCROW PERIOD"), except as otherwise provided below. One hundred eighty (180) days after the Closing, 125,000 Shares (less the number of any Shares paid or claimed to be payable in connection with any claim pursuant to Section 5.01) shall be released from escrow, and three hundred sixty (360) days after the Closing, the remaining Shares shall be released from escrow. Notwithstanding anything the foregoing, to the contrary hereinextent insufficient shares remain in escrow, as a partial mechanism Seller shall meet its responsibilities pursuant to satisfy Sections 5.01 and 5.02 to indemnify the obligations Purchaser's Indemnified Person's with timely cash payments in any amount or amounts up to and including the Indemnification Limit. Furthermore, existence of the Escrow Fund shall be extended in an amount equal to that portion of the Escrow Fund which, in the reasonable judgment of Purchaser, subject to the objection of Seller and the subsequent arbitration of the matter in the manner provided in Section 5.03(d) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the Escrow Agent prior to the end of the Escrow Period (which amount shall remain in the Escrow Fund until such claims have been resolved). As soon as all such claims have been resolved, the Escrow Agent shall deliver to Seller Parent the remaining portion of the Escrow Fund not required to satisfy such claims. (b) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and not as the property of Purchaser and shall hold and dispose of the Escrow Fund only in accordance with the terms hereof. (c) Upon receipt by the Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Purchaser (an "OFFICER'S CERTIFICATE"): (A) stating that Purchaser has incurred and paid or properly accrued Losses, or reasonably anticipates that it may have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was incurred and paid or properly accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or claim to which such item is related, the Escrow Agent shall, subject to the provisions of Sections 5.01 and 5.02 hereof and this Section 5.03, deliver to Purchaser out of the Escrow Fund, as promptly as practicable, such amounts held in the Escrow Fund equal to such Losses. Purchaser shall submit an Officer's Certificate only in good faith. (d) At the time of delivery of any Officer's Certificate to the Escrow Agent, a duplicate copy of such certificate shall be delivered to Seller, and for a period of thirty (30) days after such delivery the Escrow Agent shall make no delivery to Purchaser of any Escrow Amount specified in such Officer's Certificate unless the Escrow Agent shall have received written authorization from the Seller to make such delivery. After the expiration of such thirty (30) day period, the Escrow Agent shall make delivery of an amount from the Escrow Fund in accordance with such Officer's Certificate and Section 5.03(c) hereof, PROVIDED, THAT, no such payment or delivery may be made if Seller shall object in a written statement to the claim made in the Officer's Certificate, and such statement shall have been delivered to the Escrow Agent prior to the expiration of such thirty (30) day period. Seller shall only submit an objection in good faith. (i) In case Seller shall so object in writing to any claim or claims made in any Officer's Certificate, Seller and Purchaser shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims. If Seller and Purchaser should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum signed by Purchaser and Seller and distribute amounts from the Escrow Fund in accordance with the terms thereof. (ii) If no such agreement can be reached after good faith negotiation, either Purchaser or Seller may demand arbitration of the matter unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by one arbitrator. Purchaser and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator (who shall be affiliated with a Big Six accounting firm or a successor thereto) (the "ARBITRATOR"). The Arbitrator shall, within ten (10) business days after the last day of any hearings on any motion, issue a definitive ruling on such motion. The Arbitrator shall also, within twenty (20) business days from the last day of any hearings regarding the issuance of any awards, issue a definitive ruling on the issuance of any such award in such arbitration. The Arbitrator shall also establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the Arbitrator, to discover relevant information from the opposing parties about the subject matter of the dispute. The Arbitrator shall also rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys fees and costs, to the extent as a court of competent law or equity, should the Arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the Arbitrator as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 5.03(f) hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the Arbitrator. (iii) In no event may punitive or exemplary damages be awarded in any arbitration, and arbitration between the parties shall be final and binding. Judgment upon any award rendered by the Arbitrator may be entered in any court having jurisdiction. Any such arbitration shall be held in Santa ▇▇▇▇▇ County, California under the Commercial Rules then in effect of the American Arbitration Association. Each party to any arbitration pursuant to this Section 5.03(e) shall pay its own expenses; the fees of each arbitrator and the administrative fee of the American Arbitration Association shall be borne equally by Purchaser, on the one hand, and Seller, on the other. (f) For any third party claim which Purchaser believes may result in a demand against the Escrow Fund, Purchaser shall promptly notify Seller of such claim, and Seller shall be entitled, at Seller's expense, to participate in any defense of such claim, and to the extent Seller wishes, to assume the defense of such claim with counsel satisfactory to Purchaser and, after notice from Seller to Purchaser of Seller's election to assume the defense of such claim, the Seller will not, as long as it diligently conducts such defense, be liable to Purchaser for any fees or other counsel or any other expenses with respect to the defense of such claim. (g) The Escrow Agent's duties shall be as follows: (i) The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein, and as set forth in Article VIIany additional written escrow instructions which the Escrow Agent may receive after the date of this Agreement which are signed by an officer of Purchaser and Seller, an aggregate of $[***] of and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have been signed or presented by the Purchase Price (the “Indemnification Holdback Amount”) proper party or parties. The Escrow Agent shall not be paid liable for any act done or omitted hereunder as Escrow Agent while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. (ii) The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person, excepting only orders or process or courts of law, and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree of any court, the Escrow Agent shall not be liable to any of the parties hereto or to any other person by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. (iii) The Escrow Agent shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for hereunder. (iv) The Escrow Agent shall not be liable for the expiration of any rights under any statute of limitations with respect to this Agreement or any documents deposited with the Escrow Agent. (v) The Escrow Agent may resign at any time upon giving at least thirty (30) days written notice to Purchaser and Seller; PROVIDED, HOWEVER, that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accompanied as follows: Purchaser and Seller shall use their best efforts to mutually agree upon a successor escrow agent within thirty (30) days after receiving such notice. If the parties fail to agree upon a successor escrow agent within such time, Purchaser shall have the right to appoint a successor escrow agent (which, in such case, shall be a financial institution with assets of at least $1 billion). The successor escrow agent selected in the Closingpreceding manner shall execute and deliver an instrument accepting such appointment and it shall thereupon be deemed the Escrow Agent hereunder and it shall without further acts be vested with all the estates, but properties, rights, powers, and duties of the predecessor Escrow Agent as if originally named as Escrow Agent. Thereafter, the predecessor Escrow Agent shall instead be withheld discharged for any further duties and liabilities under this Agreement. (vi) During the Escrow Period, the Escrow Agent shall invest any cash portion of the Escrow Fund solely in direct obligations of the United States government, the principal and interest of which are fully guaranteed by the United States government, any daily or weekly withdrawal money market fund investing solely in such obligations or interest-bearing or time deposits fully insured by the Federal Deposit Insurance Corporation, and short-term bankers' acceptances in any bank which is rated in one of the two highest ratings categories by ▇▇▇▇▇'▇ Investor Service, Inc. or Standard & Poor's Corporation (collectively, the "PERMITTED INVESTMENTS"), or any combination of the foregoing. For purposes of this Agreement, any and thereafter paid all interest earned on the Escrow Fund during the Escrow Period as a result of any Permitted Investment shall be reported by Seller for tax purposes and distributed to Seller as set forth in this Section 1.3.2(a) or to Buyer as set forth in Article VII (the aggregate amount of cash so held by ▇▇▇▇▇, from time to time, the “Indemnification Holdback Fund”). Within five Business Days following the date that is [***] months after the Closing Date (the “Release Date”), Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior to the Release Date, (i) the Indemnification Holdback Fund, less (ii) the sum of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled Indemnification Claim by any Indemnified Party, and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified Party. Promptly following the final resolution of, and full payment or credit in connection with, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining portion upon termination of the Indemnification Holdback Escrow Fund. The Indemnification Holdback Fund shall not accrue interest. To the extent required by Applicable Law, a portion of any amounts released from the Indemnification Holdback Fund may be treated and reported for U.S. federal income Tax purposes as imputed interest. (bvii) The rights All fees of Seller to receive payment from the Indemnification Holdback Fund is personal to Seller and is not transferable or assignable, and any purported transfer or assignment Escrow Agent for performance of its duties hereunder shall be voidpaid by Purchaser. It is understood that the fees and usual charges agreed upon for services of the Escrow Agent shall be considered compensation for ordinary services.

Indemnification Holdback. (a) Notwithstanding anything At Closing, the Holdback Shares will be deemed issued to the contrary hereinSeller and/or its designees and transferred to Holdback Share Agent as security of the indemnification obligations of the Seller under this Article VII. Any portion of the Holdback Shares not previously released to, or permitted to be retained by, Purchaser as a partial mechanism result of an indemnification claim by Purchaser shall be released to satisfy the obligations Seller (and/or any Seller Person) on the one-year anniversary of Seller Closing; provided, however, that a portion of the Holdback Shares, which, in the reasonable judgement of the Purchaser (with the legal basis of such reasonable judgment of the Purchaser and Seller Parent the number of Holdback Shares requested by the Purchaser to be retained by the Holdback Share Agent pursuant to this Section 7.1 being set forth in Article VIIa Claim Notice (as defined in Section 7.2(a)) signed by an executive officer of Parent and delivered to the Holdback Share Agent and the Seller), an aggregate of $[***] of is necessary to satisfy any unsatisfied claims specified in any Claim Notice (as defined in Section 7.2(a) below) theretofore delivered to the Purchase Price Holdback Share Agent prior to the Holdback Distribution Date with respect to facts and circumstances existing on or prior to the Holdback Distribution Date (collectively, the “Indemnification Disputed Holdback AmountShares”), shall be retained by the Holdback Share Agent until such claims have been resolved. Any Disputed Holdback Shares held by the Holdback Share Agent with respect to any pending but unresolved indemnification claims (as described in the immediately preceding sentence) shall not be paid released to the Seller at the Closingor released to, but shall instead or permitted to be withheld by ▇▇▇▇▇retained by, and thereafter paid to Seller Purchaser (as appropriate) promptly upon resolution of each specific indemnification claim involved, as set forth in a writing mutually agreeable to the Parties hereto. For purposes of this Section 1.3.2(a) or to Buyer as set forth in Article VII (the aggregate amount of cash so held by ▇▇▇▇▇, from time to timeAgreement, the value of a Holdback Share shall equal the Parent Stock Price. Each date of release of the Holdback Shares, whether on the one-year anniversary of Closing or once any indemnification claim(s) have been finally resolved pursuant to the terms hereof, shall be known as a “Indemnification Holdback Fund”). Within five Business Days following the date that is [***] months after the Closing Date (the “Release Distribution Date”), Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior to the Release Date, (i) the Indemnification Holdback Fund, less (ii) the sum of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled Indemnification Claim by any Indemnified Party, and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified Party. Promptly following the final resolution of, and full payment or credit in connection with, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining portion of the Indemnification Holdback Fund. The Indemnification Holdback Fund shall not accrue interest. To the extent required by Applicable LawShares, a portion of any amounts when eligible for release, will be released from the Indemnification Holdback Fund may be treated and reported for U.S. federal income Tax purposes as imputed interestprovided in Section 2.3. (b) The rights of Seller to receive payment from the Indemnification Holdback Fund is personal to Seller and is not transferable or assignable, and any purported transfer or assignment shall be void.

Indemnification Holdback. (a) Notwithstanding anything At Closing, the Holdback Shares will be set aside and held by Acquirer or Acquirer’s transfer agent as security of the indemnification obligations of the Consideration Recipients under this Article 7. Any portion of the Holdback Shares not previously released to, or permitted to be retained by, Acquirer as a result of an indemnification claim by Acquirer shall be released to the contrary hereinConsideration Recipients on the one-year anniversary of Closing in accordance with the Payment Schedule; provided, as however, that a partial mechanism portion of the Holdback Shares, which, in the reasonable judgment of Acquirer, is necessary to satisfy any unsatisfied claims specified in any Officer’s Certificate (as defined in Section 7.7(a)) theretofore delivered to the obligations of Seller Securityholder Representative prior to the Holdback Distribution Date with respect to facts and Seller Parent set forth in Article VII, an aggregate of $[***] of circumstances existing on or prior to the Purchase Price Holdback Distribution Date (the “Indemnification Holdback Amount”) shall not be paid to Seller at the Closing, but shall instead be withheld by ▇▇▇▇▇, and thereafter paid to Seller as set forth in this Section 1.3.2(a) or to Buyer as set forth in Article VII (the aggregate amount of cash so held by ▇▇▇▇▇, from time to timecollectively, the “Indemnification Disputed Holdback Fund”). Within five Business Days following the date that is [***] months after the Closing Date (the “Release DateShares”), Buyer or its Affiliate shall pay be retained by Acquirer until such claims have been resolved. Any Disputed Holdback Shares held by Acquirer with respect to Seller by wire transfer of any pending but unresolved indemnification claims (as described in the immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior preceding sentence) shall be released to the Release DateConsideration Recipients or released to, or permitted to be retained by, Acquirer (ias appropriate) promptly upon resolution of each specific indemnification claim involved. For purposes of this Agreement, the Indemnification value of a Holdback Fund, less (ii) Share shall equal the sum Acquirer Stock Price. Each date of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled Indemnification Claim by any Indemnified Party, and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified Party. Promptly following the final resolution of, and full payment or credit in connection with, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining portion release of the Indemnification Holdback FundShares, whether on the one-year anniversary of Closing or once any indemnification claim(s) have been finally resolved pursuant to the terms hereof, shall be known as a “Holdback Distribution Date”. The Indemnification Holdback Fund shall not accrue interest. To the extent required by Applicable LawShares, a portion of any amounts when eligible for release, will be released from the Indemnification Holdback Fund may be treated and reported for U.S. federal income Tax purposes as imputed interestprovided in Section 1.6(b)(i). (b) The rights of Seller to receive payment from the Indemnification Holdback Fund is personal to Seller and is not transferable or assignable, and any purported transfer or assignment shall be void.

Indemnification Holdback. (a) Notwithstanding anything to the contrary herein, as a partial mechanism to satisfy the obligations of Seller and Seller in this Agreement: (a) Parent set forth in Article VII, an aggregate of $[***] shall initially withhold twenty percent (20%) of the Purchase Price Merger Consideration, which is 845.63 shares of Parent Preferred Stock and Parent Warrants to purchase 154.33 shares Parent Preferred Stock (collectively, the “Indemnification Holdback AmountHoldback”). (b) If a Parent Indemnitee determines in good faith that it is entitled to indemnification for Damages pursuant to Article IX below, Parent shall not be paid deliver to Seller at the Closing, but shall instead be withheld by ▇▇▇▇▇, and thereafter paid to Seller as set forth in this Section 1.3.2(a) or to Buyer as set forth in Article VII (▇ a written request for the aggregate payment of the amount of cash so held by such Damages (a “Payment Request”), which Payment Request shall identify in reasonable detail the facts and circumstances with respect to the subject matter of such Damages, the section of this Agreement for which indemnification is sought and the amount and method of computing the amount of Damages. Within twenty (20) days after ▇▇▇▇▇▇ receives a Payment Request, ▇▇▇▇▇▇ shall deliver to Parent a written notice (a “Response Notice”) stating whether or not ▇▇▇▇▇▇ objects to the payment of all or any portion of the Damages amount set forth in the Payment Request. In the event ▇▇▇▇▇▇ does not deliver a Response Notice within twenty (20) days after receipt of a Payment Request, ▇▇▇▇▇▇ will be deemed not to have objected to any portion of the Damages amount set forth in the Payment Request and Parent shall deduct such Damages amount from time the Indemnification Holdback pursuant to timeSection 2.9(c) below. Parent will be prohibited from deducting any Damages amount in dispute as set forth in the Response Notice, unless (i) ▇▇▇▇▇▇ delivers a written notice (an “Amended Response Notice”) to Parent stating he has withdrawn the objection with respect to all or any part of the objections set forth in the Response Notice, or (ii) Parent delivers to ▇▇▇▇▇▇ a copy of a final, non-appealable order of a court of competent jurisdiction (a “Final Order”) determining that the Parent Indemnitee is entitled to payment of such Damages amount under this Agreement. Upon receipt of an Amended Response Notice from ▇▇▇▇▇▇ or a Final Order not appealed and bonded, as applicable, Parent shall thereafter act in accordance with Section 2.9(c) below. (c) If Parent has received a Response Notice (or fails to receive a Response Notice as specified above) or an Amended Response Notice or has obtained a Final Order, and if such Response Notice (or Payment Request in the event Parent has not received a Response Notice as specified above), Amended Response Notice or Final Order indicates that a Parent Indemnitee is entitled to payment in respect of all or any portion of Damages amount set forth in a Payment Request, then Parent may deduct from the Indemnification Holdback an amount equal to the amount due to the Parent Indemnitee as indicated in such Response Notice (or Payment Request in the event Parent has not received a Response Notice as specified above), Amended Response Notice, or Final Order (the “Final Claim Amount”) as calculated in accordance with Section 2.9(c) below and such amount will be deducted from the Merger Consideration. If such Response Notice, Amended Response Notice or Final Order indicates that the Parent Indemnitee is not entitled to all or any portion of the Damages amount set forth in the Payment Request, then Parent shall not deduct such shares from the Indemnification Holdback until such amounts are distributed to any Parent Indemnitee in respect of another Payment Request pursuant to this Section 2.9 or, subject to Section 2.9(e), the “Indemnification Expiration Period. (d) For purposes of determining the number of shares of Parent Preferred Stock or Parent Warrants to be deducted from the Indemnification Holdback Fundpursuant to this Section 2.9, Parent shall divide the amount of the Damages to be paid in accordance with Section 2.9 by $1,000 (the “Stated Value”). Within five Business Days Each share of Parent Preferred Stock and each share of Parent Preferred Stock underlying the Parent Warrants shall have a value of $1,000. For purposes of delivery, for each $1,000 of Damages, Parent shall deduct .85 shares of Parent Preferred Stock and .15 Parent Warrants from the Indemnification Holdback (or such pro rata portion thereof for amounts less than $1,000. (e) If the outstanding shares of Parent Preferred Stock shall be changed into or exchanged for a different number or kind of shares of stock or other securities of Parent or of another corporation, whether through reorganization, recapitalization, stock split-up, combination of shares, sale of assets, merger or consolidation, whether or not Parent is the surviving corporation, then Parent shall be obligated to substitute for the Parent Preferred Stock the number and kind of shares of stock or other securities into which each outstanding share of Parent Preferred Stock shall be so changed. In the event a contingency described in this subsection occurs, the Stated Value shall be appropriately adjusted in a manner as agreed by Parent and ▇▇▇▇▇▇ within 30 days of such event. (f) Promptly (i) after nine months following the date that is [***] months after the Closing Date (the “First Release Date”), Buyer or its Affiliate Parent shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior distribute to the Release Date, (i) Securityholders as Merger Consideration an amount equal to 50% of the initial Indemnification Holdback Fundless the amount of Merger Consideration previously deducted by parent as a Final Claim Amount, less which Merger Consideration, if any, to be distributed shall be in the same Parent Preferred Stock to Parent Warrant ratio as set forth in subsection (c) above and (ii) after August 15, 2011 (the sum of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled “Indemnification Claim by any Indemnified PartyExpiration Date”), and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified Party. Promptly following Parent shall distribute the final resolution of, and full payment or credit in connection with, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining portion remainder of the Indemnification Holdback Fund. The (the “Indemnification Final Distribution Amount”) to the Securityholders as Merger Consideration; provided, however, that in the event that prior to the First Release Date or the Indemnification Expiration Date, Parent delivers a Payment Request to ▇▇▇▇▇▇ seeking indemnification for Damages (a “Pending Claim”) and such Pending Claim is unresolved as of the First Release Date or the Indemnification Expiration Date, Parent shall not distribute, and will continue to hold pursuant to this Agreement, that number of shares of Parent Preferred Stock or Parent Warrants pursuant to the Indemnification Holdback Fund having a value equal to the Damages amount sought with respect to such Pending Claim that is unresolved, which Parent Preferred Stock and Parent Preferred Stock underlying the Parent Warrants shall not accrue interestbe valued at the Stated Value (the “Reserved Stock”). To Parent shall continue to holdback the extent required by Applicable LawReserved Stock following the First Release Date or Indemnification Expiration Date, a portion as applicable, pending resolution of any amounts released the applicable Pending Claim and, upon resolution of the applicable Pending Claim, shall either (i) deduct such Reserved Stock in whole or in part from the Indemnification Holdback Fund payable to the Securityholders as appropriate following resolution of the applicable Pending Claim in accordance with Section 2.9, or (ii) distribute as Merger Consideration to Securityholders pursuant to this Agreement. In the event that (i) ▇▇▇▇▇▇ or Parent delivers to the other a Final Order that determines or provides that the Parent Indemnitees are or are not, as the case may be treated be, entitled to payment or reimbursement of some or all of the Damages requested in any Pending Claim, or (ii) Parent and reported for U.S. federal income Tax purposes ▇▇▇▇▇▇ jointly agree in writing that the Parent Indemnitees are or are not, as imputed interest. (b) The rights the case may be, entitled to some or all of Seller the Damages requested in any Pending Claim, Parent will disburse the Reserved Stock or portion thereof held in respect of the Damages subject to receive payment from such Pending Claim to the Securityholders pursuant to the Merger Agreement or the Parent Indemnitees, in each case, as specified in such Final Order or written agreement. At such time after the Indemnification Holdback Fund is personal to Seller Expiration Period as all Pending Claims have been finally resolved in accordance with Section 2.9 and is not transferable or assignablethere remains any Reserved Stock, and any purported transfer or assignment all remaining Reserved Stock shall be voiddelivered by Parent to the Securityholders pursuant to this Agreement as Merger Consideration. A Pending Claim shall be considered to be resolved at such time as (1) either Parent or ▇▇▇▇▇▇ delivers to the other a Final Order determining the extent, if any, to which the Parent Indemnitee is entitled to indemnification under Article IX below for the Damages pursuant to such Pending Claim, or (2) Parent and ▇▇▇▇▇▇ agree in writing that such Pending Claim has otherwise been resolved, which such written agreement indicates the extent, if any, to which the Parent Indemnitee is entitled to indemnification under Article IX below for the Damages pursuant to such Pending Claim.

Indemnification Holdback. (a) 250,000 Shares (prior to any adjustment pursuant to Section 2.05(a)) shall be placed in an escrow account (the "Escrow Fund") with Greater Bay Trust Company (the "Escrow Agent") following the Closing to be available for indemnification claims pursuant to Section 5.01, if any (the "Indemnification Shares") for a period not to exceed three hundred sixty (360) days following the Closing (the "Escrow Period"), except as otherwise provided below. One hundred eighty (180) days after the Closing, 125,000 Shares (less the number of any Shares paid or claimed to be payable in connection with any claim pursuant to Section 5.01) shall be released from escrow, and three hundred sixty (360) days after the Closing, the remaining Shares shall be released from escrow. Notwithstanding anything the foregoing, to the contrary hereinextent insufficient shares remain in escrow, as a partial mechanism Seller shall meet its responsibilities pursuant to satisfy Sections 5.01 and 5.02 to indemnify the obligations Purchaser's Indemnified Person's with timely cash payments in any amount or amounts up to and including the Indemnification Limit. Furthermore, existence of the Escrow Fund shall be extended in an amount equal to that portion of the Escrow Fund which, in the reasonable judgement of Purchaser, subject to the objection of Seller and Seller Parent set forth in Article VII, an aggregate of $[***] the subsequent arbitration of the Purchase Price matter in the manner provided in Section 5.03(d) hereof, is necessary to satisfy any unsatisfied claims specified in any Officer's Certificate (as defined below) theretofore delivered to the “Indemnification Holdback Amount”) shall not be paid to Seller at the Closing, but shall instead be withheld by ▇▇▇▇▇, and thereafter paid to Seller as set forth in this Section 1.3.2(a) or to Buyer as set forth in Article VII (the aggregate amount of cash so held by ▇▇▇▇▇, from time to time, the “Indemnification Holdback Fund”). Within five Business Days following the date that is [***] months after the Closing Date (the “Release Date”), Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days Escrow Agent prior to the Release Date, end of the Escrow Period (i) which amount shall remain in the Indemnification Holdback Fund, less (ii) the sum of (A) any amount previously forfeited to Buyer in satisfaction of any resolved or settled Indemnification Claim by any Indemnified Party, and (B) an amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified PartyEscrow Fund until such claims have been resolved). Promptly following the final resolution of, and full payment or credit in connection with, As soon as all such pending Indemnification Claimsclaims have been resolved, Buyer or its Affiliate the Escrow Agent shall pay deliver to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any the remaining portion of the Indemnification Holdback Fund. The Indemnification Holdback Escrow Fund shall not accrue interest. To the extent required by Applicable Law, a portion of any amounts released from the Indemnification Holdback Fund may be treated and reported for U.S. federal income Tax purposes as imputed interestto satisfy such claims. (b) The Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund in accordance with the terms of this Agreement and not as the property of Purchaser and shall hold and dispose of the Escrow Fund only in accordance with the terms hereof. (c) Upon receipt by the Escrow Agent at any time on or before the last day of the Escrow Period of a certificate signed by any officer of Purchaser (an "Officer's Certificate"): (A) stating that Purchaser has incurred and paid or properly accrued Losses, or reasonably anticipates that it may have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, the date each such item was incurred and paid or properly accrued, or the basis for such anticipated liability, and the nature of the misrepresentation, breach of warranty or claim to which such item is related, the Escrow Agent shall, subject to the provisions of Sections 5.01 and 5.02 hereof and this Section 5.03, deliver to Purchaser out of the Escrow Fund, as promptly as practicable, such amounts held in the Escrow Fund equal to such Losses. Purchaser shall submit an Officer's Certificate only in good faith. (d) At the time of delivery of any Officer's Certificate to the Escrow Agent, a duplicate copy of such certificate shall be delivered to Seller, and for a period of thirty (30) days after such delivery the Escrow Agent shall make no delivery to Purchaser of any Escrow Amount specified in such Officer's Certificate unless the Escrow Agent shall have received written authorization from the Seller to make such delivery. After the expiration of such thirty (30) day period, the Escrow Agent shall make delivery of an amount from the Escrow Fund in accordance with such Officer's Certificate and Section 5.03(c) hereof, provided, that, no such payment or delivery may be made if Seller shall object in a written statement to the claim made in the Officer's Certificate, and such statement shall have been delivered to the Escrow Agent prior to the expiration of such thirty (30) day period. Seller shall only submit an objection in good faith. (i) In case Seller shall so object in writing to any claim or claims made in any Officer's Certificate, Seller and Purchaser shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims. If Seller and Purchaser should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum signed by Purchaser and Seller and distribute amounts from the Escrow Fund in accordance with the terms thereof. (ii) If no such agreement can be reached after good faith negotiation, either Purchaser or Seller may demand arbitration of the matter unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by one arbitrator. Purchaser and Seller shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator (who shall be affiliated with a Big Six accounting firm or a successor thereto) (the "Arbitrator"). The Arbitrator shall, within ten (10) business days after the last day of any hearings on any motion, issue a definitive ruling on such motion. The Arbitrator shall also, within twenty (20) business days from the last day of any hearings regarding the issuance of any awards, issue a definitive ruling on the issuance of any such award in such arbitration. The Arbitrator shall also establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the Arbitrator, to discover relevant information from the opposing parties about the subject matter of the dispute. The Arbitrator shall also rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys fees and costs, to the extent as a court of competent law or equity, should the Arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the Arbitrator as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 5.03(f) hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the Arbitrator. (iii) In no event may punitive or exemplary damages be awarded in any arbitration, and arbitration between the parties shall be final and binding. Judgment upon any award rendered by the Arbitrator may be entered in any court having jurisdiction. Any such arbitration shall be held in Santa Clara County, California under the Commercial Rules then in effect of ▇▇▇ ▇merican Arbitration Association. Each party to any arbitration pursuant to this Section 5.03(e) shall pay its own expenses; the fees of each arbitrator and the administrative fee of the American Arbitration Association shall be borne equally by Purchaser, on the one hand, and Seller, on the other. (f) For any third party claim which Purchaser believes may result in a demand against the Escrow Fund, Purchaser shall promptly notify Seller of such claim, and Seller shall be entitled, at Seller's expense, to participate in any defense of such claim, and to the extent Seller wishes, to assume the defense of such claim with counsel satisfactory to Purchaser and, after notice from Seller to Purchaser of Seller's election to assume the defense of such claim, the Seller will not, as long as it diligently conducts such defense, be liable to Purchaser for any fees or other counsel or any other expenses with respect to the defense of such claim. (g) The Escrow Agent's duties shall be as follows: (i) The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein, and as set forth in any additional written escrow instructions which the Escrow Agent may receive payment after the date of this Agreement which are signed by an officer of Purchaser and Seller, and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have been signed or presented by the Indemnification Holdback Fund is personal to Seller proper party or parties. The Escrow Agent shall not be liable for any act done or omitted hereunder as Escrow Agent while acting in good faith and is not transferable or assignablein the exercise of reasonable judgment, and any purported transfer act done or assignment omitted pursuant to the written advice of counsel shall be voidconclusive evidence of such good faith. (ii) The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person, excepting only orders or process or courts of law, and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree of any court, the Escrow Agent shall not be liable to any of the parties hereto or to any other person by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. (iii) The Escrow Agent shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for hereunder. (iv) The Escrow Agent shall not be liable for the expiration of any rights under any statue of limitations with respect to this Agreement or any documents deposited with the Escrow Agent. (v) The Escrow Agent may resign at any time upon giving at least thirty (30) days written notice to Purchaser and Seller; provided, however, that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accompanied as follows: Purchaser and Seller shall use their best efforts to mutually agree upon a successor escrow agent within thirty (30) days after receiving such notice. If the parties fail to agree upon a successor escrow agent within such time, Purchaser shall have the right to appoint a successor escrow agent (which, in such case, shall be a financial institution with assets of at least $1 billion). The successor escrow agent selected in the preceding manner shall execute and deliver an instrument accepting such appointment and it shall thereupon be deemed the Escrow Agent hereunder and it shall without further acts be vested with all the estates, properties, rights, powers, and duties of the predecessor Escrow Agent as if originally named as Escrow Agent. Thereafter, the predecessor Escrow Agent shall be discharged for any further duties and liabilities under this Agreement. (vi) During the Escrow Period, the Escrow Agent shall invest any cash portion of the Escrow Fund solely in direct obligations of the United States government, the principal and interest of which are fully guaranteed by the United States government, any daily or weekly withdrawal money market fund investing solely in such obligations or interest-bearing or time deposits fully insured by the Federal Deposit Insurance Corporation, and short-term bankers' acceptances in any bank which is rated in one of the two highest ratings categories by Moody's Investor Service, Inc. or Standard & Poor's Corporation (collectively, the "Permitted Investments"), or any combination of the foregoing. For purposes of this Agreement, any and all interest earned on the Escrow Fund during the Escrow Period as a result of any Permitted Investment shall be reported by Seller for tax purposes and distributed to Seller upon termination of the Escrow Fund. (vii) All fees of the Escrow Agent for performance of its duties hereunder shall be paid by Purchaser. It is understood that the fees and usual charges agreed upon for services of the Escrow Agent shall be considered compensation for ordinary services.

Indemnification Holdback. (a) Notwithstanding anything FPMG LLC shall hold back an amount equal to the contrary herein, as a partial mechanism to satisfy the obligations of Seller and Seller Parent set forth in Article VII, an aggregate of $[***] of the Purchase Price Cap (the “Indemnification Holdback Amount”) from the Purchase Price and shall not be paid distribute the Indemnification Holdback Amount to Seller at the Closing, but shall instead be withheld by ▇▇▇▇▇, and thereafter paid to Seller its members except as set forth in this Section 1.3.2(a12.04. Except for claims relating to fraud, the Indemnification Holdback Amount shall be the sole and exclusive source for effecting the payment and discharge of any and all amounts to which any Buyer Indemnified Party shall be entitled to indemnification pursuant to this Article XII and shall not be used for any other purpose (except for distributions permitted hereby). Such Indemnification Holdback Amount shall be held at a money market account (or similar type of account that allows for immediately available cash) or at JPMorgan Chase Bank. (i) On the date which is the first anniversary of the Closing Date (the “Initial Indemnification Holdback Payment Date”), FPMG LLC shall be entitled to Buyer as set forth in Article VII distribute to its members an amount equal to the excess, if any, of 70% of the Indemnification Holdback Amount over the sum of (x) the aggregate amount of cash so held any reductions of the Indemnification Holdback Amount made in accordance with Section 12.04(b) and (y) the maximum amount payable under any unresolved claims made by ▇▇▇▇▇, from time any Buyer Indemnified Party pursuant to timethis Article XII (the amount of the Indemnity Holdback Amount remaining after distribution, the “Indemnification Initial Remaining Holdback FundAmount”). Within Except for claims relating to fraud, the Initial Remaining Holdback Amount shall, from and after the Initial Indemnification Holdback Payment Date, be the sole and exclusive source for effecting the payment and discharge of any and all amounts to which any Buyer Indemnified Party shall be entitled to indemnification pursuant to this Article XII. (ii) On the date which is the third anniversary of the Closing Date (the “Second Indemnification Holdback Payment Date”), FPMG LLC shall be entitled to distribute to its members an amount equal to the excess, if any, of 90% of the Indemnification Holdback Amount over the sum of (x) the amount previously distributable on the Initial Indemnification Holdback Date pursuant to Section 12.04(a)(i), (y) the aggregate amount of any reductions of the Initial Remaining Holdback Amount made in accordance with Section 12.04(b) from and after the Initial Indemnification Holdback Date and (z) the maximum amount payable under any unresolved claims made by any Buyer Indemnified Party pursuant to this Article XII (the amount of the Initial Indemnity Holdback Amount remaining after such distribution, the “Second Remaining Holdback Amount”). Except for claims relating to fraud, the Second Remaining Holdback Amount shall, from and after the Second Indemnification Holdback Payment Date, be the sole and exclusive source for effecting the payment and discharge of any and all amounts to which any Buyer Indemnified Party shall be entitled to indemnification pursuant to this Article XII. (iii) On the date which is the sixth anniversary of the Closing Date (the “Final Indemnification Holdback Payment Date”), FPMG LLC shall be entitled to distribute to its members an amount equal to the excess, if any, of the Second Remaining Holdback Amount over the sum of (x) the aggregate amount of any reductions of the Second Remaining Holdback Amount made in accordance with Section 12.04(b) from and after the Second Indemnification Holdback Date and (y) the maximum amount payable under any unresolved claims made by any Buyer Indemnified Party pursuant to this Article XII (the amount of the Second Remaining Holdback Amount after such distribution, the “Final Remaining Holdback Amount”). Except for claims relating to fraud, the Final Remaining Holdback Amount shall, from and after the Final Indemnification Holdback Payment Date, be the sole and exclusive source for effecting the payment and discharge of any and all amounts to which any Buyer Indemnified Party shall be entitled to indemnification pursuant to this Article XII. (b) To the extent that any Buyer Indemnified Party is entitled to any indemnification pursuant to Article XII, the Indemnification Holdback Amount, the Initial Remaining Holdback Amount, Second Remaining Holdback Amount or the Final Remaining Holdback Amount, as applicable, shall be reduced dollar-for-dollar by the amount of such indemnification made to such Buyer Indemnified Party, but only to the extent such indemnification is (x) consented to in writing by the Seller, to the extent required by Section 12.05, or (y) in such Buyer Indemnified Party’s favor and is finally determined pursuant to a final, non-appealable judgment of a court of competent jurisdiction or is no longer subject to challenge under applicable Law (a “Final Determination”). (c) To the extent any claims for indemnification pursuant to Article XII by any Buyer Indemnified Party remain pending and unresolved (and such claims have been timely made in accordance with Article XII) after the Final Indemnification Holdback Date, Seller shall not distribute the portion of the Final Remaining Holdback Amount relating to any such pending and unresolved indemnification claim until (x) the resolution of such indemnification claim is consented to in writing by the Seller, to the extent required by Section 12.05, or (y) such indemnification claim is determined in favor of such Buyer Indemnified Party, by a Final Determination, in which case the amount to which Buyer is entitled to by such Final Determination shall be distributed in accordance with Section 12.04(c). To the extent that any such indemnification claims are resolved in Seller’s favor by a Final Determination, FPMG LLC shall distribute the portion of the Final Remaining Holdback Amount relating to such claims to its members. (d) Any payment required to be made by FPMG LLC pursuant to this Section 12.04 shall be made by wire transfer or other delivery of immediately available funds within five Business Days following the date that on which such payment is [***] months after required to be made. (e) FPMG LLC is entitled to retain interest on the Closing Date (the “Release Date”), Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller to Buyer no later than three Business Days prior to the Release Date, (i) account where the Indemnification Holdback FundAmount, less Initial Remaining Holdback Amount and the Final Remaining Holdback Amount, as applicable, are held and distribute any such interest earned to its members. (iif) the sum of (A) any amount previously forfeited Except for claims relating to fraud, each Buyer in satisfaction Indemnified Party’s sole and exclusive remedy to receive payments of any resolved or settled Indemnification Claim by amounts to which any Buyer Indemnified Party, and (B) an Parties shall be entitled to indemnification pursuant to this Article XII hereof shall in no event exceed the amount sufficient to satisfy any then pending Indemnification Claims made by any Indemnified Party. Promptly following the final resolution of, and full payment or credit in connection withshall be recoverable solely from, all such pending Indemnification Claims, Buyer or its Affiliate shall pay to Seller by wire transfer of immediately available funds in accordance with wire transfer instructions provided by Seller any remaining portion of the Indemnification Holdback FundAmount. The In the event that the Indemnification Holdback Fund Amount, the Initial Remaining Holdback Amount, the Second Remaining Holdback Amount or the Final Remaining Holdback Amount, as the case may be, is insufficient to pay any Buyer Indemnified Party any amounts owed to such Buyer Indemnified Party to this Article XII, except for claims relating to fraud, the Buyer Indemnified Parties shall not accrue interest. To the extent required by Applicable Law, a portion of be entitled to collect any remaining amounts released not satisfied from the Indemnification Holdback Fund may be treated Amount and reported for U.S. federal income Tax purposes as imputed interest. (b) The rights none of Seller to receive payment from the Indemnification Holdback Fund is personal to Seller and is not transferable or assignableits Affiliates, and nor any purported transfer or assignment other Person shall be voidhave any liability for any such deficiency.