ANY APPEALS) BY A COURT OF COMPETENT
JURISDICTION, AS THE CASE MAY BE (IN EITHER CASE, "PENDING CLAIMS"), AND WHICH,
IF RESOLVED OR FINALLY DETERMINED IN FAVOR OF BUYER, WOULD RESULT IN A PAYMENT
TO BUYER, THE ESCROW AGENT SHALL RETAIN IN THE PENDING CLAIMS RESERVE THAT
NUMBER OF SHARES OF PREFERRED STOCK HAVING A FAIR MARKET VALUE EQUAL TO ONE
HUNDRED TEN PERCENT (110%) OF THE DOLLAR AMOUNT FOR WHICH INDEMNIFICATION IS
SOUGHT IN SUCH INDEMNIFICATION CLAIM, ALLOCATED PRO RATA FROM THE ACCOUNT
MAINTAINED ON BEHALF OF EACH OWNER LIABLE FOR SUCH CLAIM.
BUYER SHALL CERTIFY
TO THE ESCROW AGENT THE FAIR MARKET VALUE TO BE USED IN CALCULATING THE PENDING
CLAIMS RESERVE AND THE NUMBER OF SHARES OF PREFERRED STOCK TO BE RETAINED
THEREFOR.
THEREAFTER, IF ANY PENDING CLAIM BECOMES AN ESTABLISHED CLAIM, BUYER
AND THE REPRESENTATIVE SHALL DELIVER TO THE ESCROW AGENT A JOINT NOTICE
DIRECTING THE ESCROW AGENT TO DELIVER TO BUYER THE NUMBER OF SHARES IN THE
PENDING CLAIMS RESERVE IN RESPECT THEREOF DETERMINED IN ACCORDANCE WITH
SECTION 2(F) AND TO DELIVER TO EACH OWNER THE REMAINING SHARES IN THE PENDING
CLAIMS RESERVE ALLOCATED TO SUCH PENDING CLAIM, ALL AS SPECIFIED IN A JOINT
NOTICE. IF ANY PENDING CLAIM IS RESOLVED AGAINST BUYER, BUYER AND THE
REPRESENTATIVE SHALL DELIVER TO THE ESCROW AGENT A JOINT NOTICE DIRECTING THE
ESCROW AGENT TO PAY TO EACH OWNER ITS PRO RATA PORTION OF THE NUMBER OF SHARES
ALLOCATED TO SUCH PENDING CLAIM IN THE PENDING CLAIMS RESERVE.
(B)
AS USED HEREIN, THE "PENDING CLAIMS RESERVE"
SHALL MEAN, AT THE TIME ANY SUCH DETERMINATION IS MADE, THAT NUMBER OF SHARES OF
PREFERRED STOCK IN THE ESCROW FUND HAVING A FAIR MARKET VALUE EQUAL TO THE SUM
OF THE AGGREGATE DOLLAR AMOUNTS CLAIMED TO BE DUE WITH RESPECT TO ALL PENDING
CLAIMS (AS SHOWN IN THE NOTICES OF SUCH CLAIMS).
4.
COOPERATION.
THE ESCROW AGENT, BUYER
AND THE REPRESENTATIVE SHALL COOPERATE IN ALL RESPECTS WITH ONE ANOTHER IN THE
CALCULATION OF ANY AMOUNTS DETERMINED TO BE PAYABLE TO BUYER AND THE OWNERS IN
ACCORDANCE WITH THIS AGREEMENT AND IN IMPLEMENTING THE PROCEDURES NECESSARY TO
EFFECT SUCH PAYMENTS.
5
5.
ESCROW AGENT.
(A)
THE ESCROW AGENT UNDERTAKES TO PERFORM ONLY
SUCH DUTIES AS ARE EXPRESSLY SET FORTH HEREIN.
IT IS UNDERSTOOD THAT THE ESCROW
AGENT IS NOT A TRUSTEE OR FIDUCIARY AND IS ACTING HEREUNDER MERELY IN A
MINISTERIAL CAPACITY.
(B)
THE ESCROW AGENT SHALL NOT BE LIABLE FOR ANY
ACTION TAKEN OR OMITTED BY IT IN GOOD FAITH AND IN THE EXERCISE OF ITS OWN BEST
JUDGMENT, AND MAY RELY CONCLUSIVELY AND SHALL BE PROTECTED IN ACTING UPON ANY
ORDER, NOTICE, DEMAND, CERTIFICATE, OPINION OR ADVICE OF COUNSEL (INCLUDING
COUNSEL CHOSEN BY THE ESCROW AGENT), STATEMENT, INSTRUMENT, REPORT OR OTHER
PAPER OR DOCUMENT (NOT ONLY AS TO ITS DUE EXECUTION AND THE VALIDITY AND
EFFECTIVENESS OF ITS PROVISIONS, BUT ALSO AS TO THE TRUTH AND ACCEPTABILITY OF
ANY INFORMATION THEREIN CONTAINED) WHICH IS BELIEVED BY THE ESCROW AGENT TO