ESCROW AGREEMENT

ESCROW AGREEMENT
Dated as of May 27, 2024
among
LUMOS ANALYTICS INC.
a Delaware corporation
(the "Buyer")
JONAH EBERHARDT
("Eberhardt")
TALIA MESSINA
("Messina," and together with Eberhardt, the "Sellers" and each a "Seller")
and
FENWICK ESCROW SERVICES LLC
a California limited liability company
(the "Escrow Agent")
This Escrow Agreement is entered into in connection with and pursuant to that certain Agreement and Plan of Merger, dated as of April 3, 2024 (as amended, supplemented, or otherwise modified from time to time, the "Merger Agreement"), among Lumos Analytics Inc., a Delaware corporation, Prismyx Acquisition Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Lumos Analytics Inc., Prismyx Data Solutions LLC, a Delaware limited liability company, Jonah Eberhardt, and Talia Messina.
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RECITALS
A. Buyer, Prismyx Acquisition Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Buyer ("Merger Sub"), Prismyx Data Solutions LLC, a Delaware limited liability company ("Prismyx" or the "Company"), Jonah Eberhardt, and Talia Messina have entered into that certain Agreement and Plan of Merger, dated as of April 3, 2024 (the "Merger Agreement"), pursuant to which, among other things, the Company will merge with and into Merger Sub in accordance with Section 18-209 of the Delaware Limited Liability Company Act (the "DLLCA"), with Merger Sub surviving the merger as a wholly owned subsidiary of Buyer (the "Merger").
B. Pursuant to the terms of the Merger Agreement, the aggregate consideration payable in connection with the Merger (the "Aggregate Consideration") is Fifteen Million Dollars ($15,000,000), consisting of (i) Ten Million Five Hundred Thousand Dollars ($10,500,000) in closing cash consideration (the "Closing Cash Consideration") and (ii) up to Four Million Five Hundred Thousand Dollars ($4,500,000) in contingent earnout payments, subject to the terms and conditions of the Merger Agreement.
C. The Merger Agreement requires that, at the closing of the transactions contemplated thereby (the "Closing"), the sum of Four Million Five Hundred Thousand Dollars ($4,500,000) (the "Escrow Amount"), representing thirty percent (30%) of the Aggregate Consideration, be deposited with the Escrow Agent from the Closing Cash Consideration otherwise payable to the Sellers, to be held, invested, and distributed in accordance with the terms of this Agreement, to secure the indemnification obligations of the Sellers under Article VIII of the Merger Agreement.
D. The Escrow Amount represents a portion of the Closing Cash Consideration otherwise payable to the Sellers, allocated between the Sellers in proportion to their respective ownership interests in the Company immediately prior to the Closing, as follows: (i) Two Million Four Hundred Seventy-Five Thousand Dollars ($2,475,000) is attributable to Eberhardt, who held five hundred fifty (550) of the one thousand (1,000) issued and outstanding membership units of the Company, representing fifty-five percent (55%) of the outstanding membership units; and (ii) Two Million Twenty-Five Thousand Dollars ($2,025,000) is attributable to Messina, who held four hundred fifty (450) of the one thousand (1,000) issued and outstanding membership units of the Company, representing forty-five percent (45%) of the outstanding membership units.
E. The parties desire to establish the terms and conditions under which the Escrow Agent will hold, invest, and distribute the Escrow Amount and any earnings thereon in accordance with this Agreement.
F. Fenwick Escrow Services LLC has agreed to serve as Escrow Agent upon the terms and conditions set forth herein and in consideration of the fees described in Article VII hereof.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below:
"Aggregate Consideration" means Fifteen Million Dollars ($15,000,000), being the aggregate consideration payable in connection with the Merger as set forth in the Merger Agreement, consisting of the Closing Cash Consideration and the contingent earnout payments.
"Agreement" means this Escrow Agreement, including all schedules and exhibits attached hereto, as it may be amended, supplemented, or otherwise modified from time to time in accordance with Section 10.5.
"Basket" means One Hundred Fifty Thousand Dollars ($150,000), being the aggregate threshold amount of indemnifiable Losses that must be incurred by Buyer Indemnified Parties before recovery may be sought from the Escrow Fund, as more fully described in Section 4.5(b).
"Business Day" means any day that is not a Saturday, Sunday, or other day on which commercial banking institutions in San Francisco, California, Irvine, California, or Wilmington, Delaware are authorized or required by law to remain closed.
"Buyer" means Lumos Analytics Inc., a Delaware corporation, with its principal offices at 450 Mission Street, Suite 2200, San Francisco, California 94105.
"Buyer Indemnified Parties" has the meaning assigned to such term in the Merger Agreement.
"Buyer Representative" means Margaux Fontaine, General Counsel of Lumos Analytics Inc., or such other person as may be designated by Buyer in a written notice delivered to the Escrow Agent and the Sellers' Representative in accordance with Section 10.3.
"Claim Certificate" or "Claim Notice" means a written notice delivered by the Buyer Representative to the Escrow Agent and the Sellers' Representative setting forth a claim for indemnification from the Escrow Fund, which notice shall include (a) a statement that Buyer is entitled to indemnification under the Merger Agreement, (b) the specific section(s) of the Merger Agreement under which indemnification is sought, (c) a reasonably detailed description of the facts and circumstances giving rise to the claim, (d) the aggregate dollar amount claimed (the "Claimed Amount"), and (e) whether the claim arises from a Third-Party Claim or a Direct Claim.
"Claimed Amount" has the meaning set forth in the definition of "Claim Certificate."
"Closing" means the closing of the transactions contemplated by the Merger Agreement.
"Closing Cash Consideration" means Ten Million Five Hundred Thousand Dollars ($10,500,000), being the portion of the Aggregate Consideration payable in cash at the Closing.
"Closing Date" means May 27, 2024, being the date on which the Closing occurs.
"De Minimis Threshold" means Fifteen Thousand Dollars ($15,000), being the minimum amount that an individual claim for indemnification must equal or exceed before such claim may be asserted against the Escrow Fund, as more fully described in Section 4.5(a).
"Direct Claim" means any claim for indemnification that does not arise out of or relate to a Third-Party Claim.
"Disputed Amount" means any portion of a Claimed Amount that the Sellers' Representative disputes in an Objection Notice delivered within the Objection Period.
"Eberhardt" means Jonah Eberhardt, an individual.
"Eberhardt Pro Rata Share" means fifty-five percent (55%), being the percentage of the outstanding membership units of the Company held by Eberhardt immediately prior to the Closing (550 of 1,000 membership units).
"Escrow Account" means the segregated escrow account established and maintained by the Escrow Agent at Fenwick Escrow Services LLC for the sole purpose of holding the Escrow Fund, as more fully described in Section 2.2.
"Escrow Agent" means Fenwick Escrow Services LLC, a California limited liability company, with its offices at 3 Park Plaza, Suite 1100, Irvine, California 92614. The designated escrow officer for purposes of this Agreement is Dana Whitford.
"Escrow Amount" means Four Million Five Hundred Thousand Dollars ($4,500,000), being the amount deposited with the Escrow Agent at the Closing in accordance with Section 2.1.
"Escrow Fund" means, at any time, the Escrow Amount, together with any Investment Earnings thereon, less any amounts theretofore distributed or deducted from the Escrow Account in accordance with this Agreement.
"Escrow Release Date" means November 27, 2025, the date that is eighteen (18) months after the Closing Date.
"Fundamental Representations" means the representations and warranties of the Sellers relating to organization, authority, capitalization, title to assets, taxes, and brokers, as more specifically identified in the Merger Agreement, which survive for a period of thirty-six (36) months from the Closing Date.
"Indemnification Cap" means Four Million Five Hundred Thousand Dollars ($4,500,000), being thirty percent (30%) of the Aggregate Consideration, representing the maximum aggregate amount recoverable from the Escrow Fund for indemnification claims (other than claims based on fraud, willful misconduct, or Special Indemnities), as set forth in the Merger Agreement.
"Investment Earnings" has the meaning set forth in Section 3.3.
"Joint Written Instructions" means written instructions signed by both the Buyer Representative and the Sellers' Representative (or, if applicable, their duly authorized designees), delivered to the Escrow Agent in accordance with this Agreement.
"Losses" has the meaning assigned to such term in the Merger Agreement.
"Merger" has the meaning set forth in Recital A.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of April 3, 2024, among Buyer, Merger Sub, the Company, Eberhardt, and Messina, as amended, supplemented, or otherwise modified from time to time.
"Merger Sub" means Prismyx Acquisition Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Buyer.
"Messina" means Talia Messina, an individual.
"Messina Pro Rata Share" means forty-five percent (45%), being the percentage of the outstanding membership units of the Company held by Messina immediately prior to the Closing (450 of 1,000 membership units).
"Objection Notice" means a written notice delivered by the Sellers' Representative to the Escrow Agent and the Buyer Representative, within the Objection Period, objecting to all or any portion of a Claim Certificate, as more fully described in Section 4.2.
"Objection Period" means the period of thirty (30) calendar days following receipt by the Sellers' Representative of a Claim Certificate.
"Pending Claims" means, as of any date of determination, all claims for which a Claim Certificate has been delivered to the Escrow Agent and the Sellers' Representative but as to which the Claimed Amounts (or any portion thereof) have not been finally resolved, including any claims that are the subject of a Disputed Amount.
"Permitted Investments" has the meaning set forth in Section 3.2.
"Person" means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, governmental authority, or any other entity or body.
"Reserve Amount" has the meaning set forth in Section 5.2.
"Sellers" means Jonah Eberhardt and Talia Messina, collectively, and "Seller" means either of them individually.
"Sellers' Representative" means Jonah Eberhardt, acting on behalf of both Sellers pursuant to Section 9.13 of the Merger Agreement and Section 10.11 of this Agreement.
"Special Indemnities" means indemnification obligations of the Sellers arising from (i) pre-closing tax liabilities, (ii) breaches of Fundamental Representations, and (iii) fraud or willful misconduct, which, pursuant to the Merger Agreement, are not subject to the Basket or the Indemnification Cap.
"Third-Party Claim" means any claim, demand, action, suit, or proceeding by or on behalf of a Person that is not a party to this Agreement or the Merger Agreement (or an affiliate thereof) against any Buyer Indemnified Party.
"Undisputed Amount" means any portion of a Claimed Amount that the Sellers' Representative agrees is payable, as set forth in an Objection Notice, or the full Claimed Amount if no Objection Notice is timely delivered.
Section 1.2 — Merger Agreement Definitions.
Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings assigned to such terms in the Merger Agreement. To the extent that any capitalized term is defined both in this Agreement and in the Merger Agreement, the definition set forth in this Agreement shall control for purposes of interpreting this Agreement, unless the context clearly requires otherwise.
Section 1.3 — Construction.
The following rules of interpretation shall apply to this Agreement:
(a) The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of any provision hereof.
(b) Whenever the context requires, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders, and vice versa.
(c) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(d) References to "Sections," "Articles," "Schedules," and "Exhibits" are to the Sections, Articles, Schedules, and Exhibits of this Agreement, unless otherwise specified.
(e) References to "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular provision.
(f) References to "dollars" or "$" are to United States dollars.
(g) References to any statute or regulation refer to such statute or regulation as amended, modified, supplemented, or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated thereunder).
(h) The parties have participated jointly in the negotiation and drafting of this Agreement, and any ambiguity or question of intent or interpretation shall not be construed against any party on the ground that such party drafted or was responsible for drafting any particular provision.
(i) All references to "days" shall mean calendar days, unless "Business Days" are expressly specified.
ARTICLE II — ESTABLISHMENT OF ESCROW; DEPOSIT
Section 2.1 — Deposit of Escrow Amount.
On the Closing Date, Buyer shall deposit, or cause to be deposited, the sum of Four Million Five Hundred Thousand Dollars ($4,500,000) in immediately available funds by wire transfer to the Escrow Account, in accordance with the wire transfer instructions set forth in Schedule A hereto. The parties acknowledge that the Escrow Amount constitutes a portion of the Closing Cash Consideration that would otherwise be payable directly to the Sellers at the Closing, allocated between the Sellers in accordance with their respective Pro Rata Shares (Eberhardt: $2,475,000; Messina: $2,025,000). The Escrow Agent hereby acknowledges receipt of the Escrow Amount upon its deposit into the Escrow Account and agrees to hold, invest, and distribute the Escrow Fund in accordance with the terms and conditions of this Agreement.
Section 2.2 — Escrow Account.
The Escrow Agent shall establish and maintain a segregated escrow account at Fenwick Escrow Services LLC (the "Escrow Account") for the sole purpose of holding the Escrow Fund. The Escrow Account shall be titled:
"Fenwick Escrow Services LLC, as Escrow Agent FBO Lumos Analytics Inc. / Eberhardt / Messina Indemnification Escrow"
The Escrow Agent shall hold the Escrow Fund as a trust fund and shall not commingle the Escrow Fund with any other funds held by the Escrow Agent. The Escrow Agent shall not use the Escrow Fund for any operating or business purpose of the Escrow Agent, and the Escrow Fund shall not be subject to any debts or obligations of the Escrow Agent. The Escrow Agent shall maintain accurate books and records with respect to the Escrow Account and shall provide quarterly account statements to the Buyer Representative and the Sellers' Representative within fifteen (15) calendar days following the end of each calendar quarter.
Section 2.3 — Nature of Escrow.
The parties acknowledge and agree that, except as otherwise expressly provided in the Merger Agreement with respect to claims arising from fraud, willful misconduct, or Special Indemnities, the Escrow Fund constitutes the sole and exclusive source of recovery for indemnification claims under the Merger Agreement. The Escrow Fund shall not be subject to any lien, attachment, trustee process, levy, garnishment, or similar process by any creditor of any party hereto, and no party hereto shall have any right to pledge, encumber, hypothecate, or otherwise grant a security interest in the Escrow Fund or any portion thereof. Each party hereto agrees not to take any action that would create or permit the creation of any lien on or security interest in the Escrow Fund, other than the interests created by this Agreement.
ARTICLE III — INVESTMENT OF ESCROW FUND
Section 3.1 — Investment.
The Escrow Agent shall invest and reinvest the Escrow Fund, including any Investment Earnings thereon, in Permitted Investments as directed by Joint Written Instructions from the Buyer Representative and the Sellers' Representative. Such Joint Written Instructions may be delivered at any time and from time to time, and shall remain in effect until superseded by subsequent Joint Written Instructions. In the absence of written investment instructions received by the Escrow Agent on or prior to the Closing Date (or at any time thereafter during which no investment instructions are in effect), the Escrow Agent shall invest and hold the Escrow Fund in an interest-bearing deposit account or money market deposit account at a federally insured depository institution selected by the Escrow Agent in its reasonable discretion. The Escrow Agent shall have no obligation to maximize the return on any investment of the Escrow Fund, and the parties acknowledge that the Escrow Agent is not acting as an investment advisor with respect to the Escrow Fund.
Section 3.2 — Permitted Investments.
"Permitted Investments" shall mean any of the following:
(a) Direct obligations of the United States of America, or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, in each case maturing within ninety (90) days of the date of acquisition thereof;
(b) Money market funds that are registered under the Investment Company Act of 1940, as amended, and that maintain a constant net asset value of $1.00 per share, rated at least AAAm (or its equivalent) by Standard & Pelvoran Ratings Group, a division of S&P Global Inc., or Aaa-mf (or its equivalent) by Moody's Investors Service, Inc., or an equivalent rating by another nationally recognized statistical rating organization;
(c) Certificates of deposit issued by a commercial bank organized under the laws of the United States or any state thereof, the deposits of which are insured by the Federal Deposit Insurance Corporation, with combined capital and surplus exceeding Five Hundred Million Dollars ($500,000,000), maturing within ninety (90) days of the date of acquisition thereof; or
(d) Such other investments as the Buyer Representative and the Sellers' Representative may agree to in Joint Written Instructions delivered to the Escrow Agent.
Section 3.3 — Investment Earnings.
All interest, dividends, gains, and other income earned on the Escrow Fund (collectively, "Investment Earnings") shall be added to and become part of the Escrow Fund and shall be distributed in accordance with Article IV and Article V of this Agreement. For the avoidance of doubt, Investment Earnings shall be subject to the same claims, distributions, and release provisions as the original Escrow Amount.
Section 3.4 — Tax Reporting.
(a) For United States federal and applicable state and local income tax purposes, the parties agree that the Sellers shall be treated as the owners of the Escrow Fund (including all Investment Earnings thereon) in proportion to their respective Pro Rata Shares (Eberhardt: 55%; Messina: 45%). The parties shall not take any position on any tax return or filing that is inconsistent with the treatment described in this Section 3.4(a), unless otherwise required by a final determination of the Internal Revenue Service or a court of competent jurisdiction.
(b) The Escrow Agent shall report all Investment Earnings to the Internal Revenue Service (the "IRS") on IRS Form 1099 (or such other applicable forms as may be required under the Internal Revenue Code of 1986, as amended) under the taxpayer identification numbers of the Sellers as follows:
(i) Eberhardt — fifty-five percent (55%) of all Investment Earnings; and
(ii) Messina — forty-five percent (45%) of all Investment Earnings.
(c) Each party hereto shall provide the Escrow Agent with a properly completed and executed IRS Form W-9 (Request for Taxpayer Identification Number and Certification) prior to or concurrent with the execution of this Agreement. The tax identification numbers of the entities involved in the transactions contemplated hereby are as follows:
The Sellers shall provide their individual Social Security Numbers directly to the Escrow Agent on their respective IRS Forms W-9. The Escrow Agent shall treat such information as confidential and shall not disclose it except as required by applicable law or regulation.
(d) Notwithstanding any other provision of this Agreement, the Escrow Agent shall be entitled to deduct and withhold from any distribution or payment made pursuant to this Agreement such amounts as may be required to be deducted and withheld under any provision of applicable tax law. Any amounts so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Section 3.5 — Investment Risk.
The Escrow Agent shall not be liable for any loss of principal or income resulting from any Permitted Investment made in accordance with this Agreement or in accordance with Joint Written Instructions received from the parties, including, without limitation, any losses arising from market fluctuations, changes in interest rates, the default or insolvency of any issuer or depository institution, or the depreciation in value of any Permitted Investment. The parties acknowledge that the Escrow Agent is not guaranteeing the return of principal or any rate of return on any Permitted Investment and that Permitted Investments are subject to the risk of loss of principal. The Escrow Agent shall have no liability for any losses resulting from the liquidation of any Permitted Investment prior to its stated maturity.
ARTICLE IV — CLAIMS PROCEDURES
Section 4.1 — Claim Certificate.
At any time prior to the final distribution of the Escrow Fund pursuant to Article V, the Buyer Representative may deliver to the Escrow Agent and the Sellers' Representative a Claim Certificate setting forth:
(a) a statement that Buyer believes it is entitled to indemnification under the Merger Agreement;
(b) the specific section(s) of the Merger Agreement under which indemnification is sought;
(c) a reasonably detailed description of the facts and circumstances giving rise to the claim, including, to the extent known, the identity of any third parties involved and the date(s) on which the events giving rise to the claim occurred or were discovered;
(d) the aggregate dollar amount claimed from the Escrow Fund (the "Claimed Amount"), together with a reasonable estimate of the amount, if a precise determination is not then available; and
(e) whether the claim arises from a Third-Party Claim or a Direct Claim.
The delivery of a Claim Certificate shall constitute a direction to the Escrow Agent to hold in the Escrow Account an amount equal to the Claimed Amount (or the then-remaining balance of the Escrow Fund, if less) pending resolution of such claim in accordance with this Article IV. A Claim Certificate may be amended or supplemented by the Buyer Representative at any time by delivering a revised Claim Certificate to the Escrow Agent and the Sellers' Representative.
Section 4.2 — Objection Notice.
Within thirty (30) calendar days after receipt by the Sellers' Representative of a Claim Certificate (the "Objection Period"), the Sellers' Representative may deliver to the Escrow Agent and the Buyer Representative an Objection Notice setting forth:
(a) the specific basis for the Sellers' Representative's objection to all or any portion of the Claim Certificate, including a reasonably detailed statement of the facts and legal grounds upon which the objection is based;
(b) the amount, if any, that the Sellers' Representative agrees is payable to Buyer from the Escrow Fund with respect to such Claim Certificate (the "Undisputed Amount"); and
(c) the amount, if any, that the Sellers' Representative disputes (the "Disputed Amount"), together with a reasonably detailed explanation of the grounds for such dispute.
If the Sellers' Representative does not deliver an Objection Notice within the Objection Period, the entire Claimed Amount set forth in the applicable Claim Certificate shall be deemed to be an Undisputed Amount, and the Escrow Agent shall distribute such amount to Buyer in accordance with Section 4.3.
Section 4.3 — Distribution of Undisputed Amounts.
Promptly, and in any event within five (5) Business Days, following:
(a) the expiration of the Objection Period without delivery of an Objection Notice by the Sellers' Representative (in which case the entire Claimed Amount shall be deemed an Undisputed Amount); or
(b) delivery of an Objection Notice by the Sellers' Representative specifying an Undisputed Amount,
the Escrow Agent shall distribute to Buyer from the Escrow Fund an amount equal to (i) the full Claimed Amount (in the case of clause (a) above) or (ii) the Undisputed Amount (in the case of clause (b) above), by wire transfer of immediately available funds to the account designated by the Buyer Representative in accordance with the wire instructions set forth in Schedule A hereto (or such other account as the Buyer Representative may designate in writing to the Escrow Agent). The Escrow Agent shall have no obligation to independently verify the accuracy or validity of any Claim Certificate or Objection Notice and shall be entitled to rely on such documents as presented.
Section 4.4 — Resolution of Disputed Amounts.
(a) Any Disputed Amount shall remain in the Escrow Fund pending resolution in accordance with this Section 4.4. The Buyer Representative and the Sellers' Representative shall negotiate in good faith and use commercially reasonable efforts to resolve any Disputed Amount within thirty (30) calendar days following delivery of the applicable Objection Notice (the "Negotiation Period").
(b) If the Buyer Representative and the Sellers' Representative are able to resolve a Disputed Amount (in whole or in part) during the Negotiation Period, they shall promptly deliver Joint Written Instructions to the Escrow Agent directing the distribution of the resolved portion of the Disputed Amount, specifying the amounts to be paid to Buyer and the amounts to be retained in or released from the Escrow Fund.
(c) If the Buyer Representative and the Sellers' Representative are unable to resolve a Disputed Amount (in whole or in part) within the Negotiation Period, either party may submit the unresolved dispute to binding resolution in accordance with the dispute resolution provisions of Section 10.2 hereof or, to the extent applicable, the dispute resolution provisions of the Merger Agreement. Upon final resolution of any Disputed Amount, whether by mutual agreement of the parties, final and non-appealable arbitration award, or final and non-appealable order or judgment of a court of competent jurisdiction, the Escrow Agent shall distribute the Disputed Amount (or the applicable portion thereof) as follows:
(i) to Buyer, the portion of the Disputed Amount determined to be payable to Buyer pursuant to such resolution; and
(ii) to the Sellers (in their respective Pro Rata Shares), the remainder, if any, of the Disputed Amount.
(d) The Escrow Agent shall be entitled to rely, and shall be fully protected in relying, on Joint Written Instructions or a certified copy of a final, non-appealable order of a court of competent jurisdiction or arbitral tribunal as conclusive evidence of the resolution of any Disputed Amount. The Escrow Agent shall have no duty to investigate or determine the merits of any claim or dispute, and shall bear no liability for any distribution made in accordance with Joint Written Instructions or such final order.
Section 4.5 — Indemnification Thresholds.
Consistent with the indemnification provisions of the Merger Agreement, the following limitations shall apply to claims against the Escrow Fund:
(a) De Minimis Threshold. No individual claim for indemnification shall be made against the Escrow Fund unless the amount of such individual claim equals or exceeds Fifteen Thousand Dollars ($15,000) (the "De Minimis Threshold"). Individual claims that do not equal or exceed the De Minimis Threshold shall be disregarded for all purposes under this Agreement and the Merger Agreement.
(b) Basket. The Buyer shall not be entitled to any distribution from the Escrow Fund unless and until the aggregate amount of all claims for indemnification (each of which individually equals or exceeds the De Minimis Threshold) exceeds One Hundred Fifty Thousand Dollars ($150,000) (the "Basket"), at which point recovery shall be permitted from the first dollar of Losses (i.e., a "tipping basket" or "first-dollar" basket).
(c) Indemnification Cap. The total amount recoverable from the Escrow Fund for all indemnification claims (other than claims based on fraud, willful misconduct, or Special Indemnities) shall not exceed Four Million Five Hundred Thousand Dollars ($4,500,000) (the "Indemnification Cap"), which amount is equal to thirty percent (30%) of the Aggregate Consideration.
Notwithstanding the foregoing, the Escrow Agent shall not be responsible for determining the applicability or satisfaction of the De Minimis Threshold, the Basket, or the Indemnification Cap, and shall have no obligation to monitor whether or the extent to which any such threshold or limitation has been reached. The Escrow Agent shall distribute funds from the Escrow Account solely in accordance with the instructions, notices, and determinations set forth in Sections 4.2 through 4.4, and shall be entitled to assume that any Claim Certificate delivered by the Buyer Representative has been prepared in compliance with the applicable thresholds and limitations.
Section 4.6 — Third-Party Claims.
With respect to any Claim Certificate that arises from or relates to a Third-Party Claim, the procedures and rights relating to the defense, settlement, compromise, and cooperation with respect to such Third-Party Claim shall be governed exclusively by the applicable provisions of the Merger Agreement. The Escrow Agent shall have no obligation to participate in the defense or settlement of, or make any determination regarding, any Third-Party Claim. The Buyer Representative's delivery of a Claim Certificate relating to a Third-Party Claim shall not be contingent upon the final resolution of such Third-Party Claim, and amounts may be retained in the Escrow Fund as Pending Claims pending such resolution.
Section 4.7 — Special Indemnities; Fraud.
Consistent with the terms of the Merger Agreement, the parties acknowledge and agree that claims arising from:
(i) pre-closing tax liabilities of the Company or the Sellers;
(ii) breaches of the Fundamental Representations (which, pursuant to the Merger Agreement, survive for a period of thirty-six (36) months from the Closing Date); and
(iii) fraud or intentional misrepresentation by any Seller,
are not subject to the De Minimis Threshold, the Basket, or the Indemnification Cap, and may be recoverable from the Escrow Fund and, to the extent the Escrow Fund is insufficient to satisfy such claims in full, directly from the Sellers in accordance with the Merger Agreement. The Escrow Agent's obligations with respect to any such claims shall be limited to distributing amounts from the Escrow Fund in accordance with the procedures set forth in this Article IV, and the Escrow Agent shall have no obligation to determine whether any particular claim constitutes a Special Indemnity or a claim based on fraud.
ARTICLE V — RELEASE AND DISTRIBUTION OF ESCROW FUND
Section 5.1 — Scheduled Release.
On the Escrow Release Date (November 27, 2025, which is eighteen (18) months after the Closing Date), subject to Section 5.2, the Escrow Agent shall distribute to the Sellers the entire remaining balance of the Escrow Fund (including all Investment Earnings thereon), by wire transfer of immediately available funds to the accounts designated by the Sellers' Representative in writing to the Escrow Agent; provided, that such distributions shall be allocated between the Sellers in accordance with their respective Pro Rata Shares, as follows:
(a) to Eberhardt — fifty-five percent (55%) of the distributable balance; and
(b) to Messina — forty-five percent (45%) of the distributable balance.
The Sellers' Representative shall deliver wire transfer instructions for each Seller to the Escrow Agent no later than ten (10) Business Days prior to the Escrow Release Date. If the Escrow Agent does not receive wire transfer instructions for either Seller by such date, the Escrow Agent shall hold the portion of the Escrow Fund allocable to such Seller until proper wire instructions are received, without liability for any delay in distribution.
Section 5.2 — Reserve for Pending Claims.
Notwithstanding Section 5.1, if as of the Escrow Release Date there are any Pending Claims (i.e., Claim Certificates that have been delivered to the Escrow Agent and the Sellers' Representative but as to which the Claimed Amounts, or any portions thereof, have not been finally resolved in accordance with Article IV), the Escrow Agent shall retain in the Escrow Account an amount equal to the aggregate of all unresolved Claimed Amounts (and, in the case of partially resolved claims, the unresolved portions of such Claimed Amounts) with respect to all such Pending Claims (the "Reserve Amount"). The balance of the Escrow Fund in excess of the Reserve Amount, if any, shall be distributed to the Sellers on the Escrow Release Date in accordance with Section 5.1 and in their respective Pro Rata Shares.
Upon the final resolution of each Pending Claim in accordance with Section 4.4 (whether by Joint Written Instructions, final arbitration award, or final court order), the Escrow Agent shall promptly distribute the portion of the Reserve Amount allocable to such resolved Pending Claim as follows:
(a) to Buyer, the portion of such Reserve Amount that is determined to be payable to Buyer pursuant to such resolution; and
(b) to the Sellers (in their respective Pro Rata Shares), the remainder, if any, of such Reserve Amount corresponding to such resolved Pending Claim that is not payable to Buyer.
Section 5.3 — Final Distribution.
Promptly upon the final resolution of the last remaining Pending Claim in accordance with Article IV, the Escrow Agent shall distribute any remaining balance of the Escrow Fund (including all Investment Earnings thereon) to the Sellers in their respective Pro Rata Shares, by wire transfer of immediately available funds to the accounts designated by the Sellers' Representative. Upon the completion of such final distribution and confirmation that no further amounts remain in the Escrow Account, the Escrow Account shall be closed, and the Escrow Agent shall deliver written confirmation of such closure to the Buyer Representative and the Sellers' Representative.
Section 5.4 — No Distribution in Excess of Escrow Fund.
In no event shall the Escrow Agent be required or obligated to distribute, pay, or otherwise disburse amounts in excess of the balance of the Escrow Fund at the time of any distribution. If the aggregate amount of distributions required to be made by the Escrow Agent under this Agreement at any time exceeds the then-current balance of the Escrow Fund, the Escrow Agent shall distribute the entire remaining balance of the Escrow Fund in accordance with the applicable provisions of this Agreement, and the Escrow Agent shall have no further obligation with respect to any deficiency.
ARTICLE VI — ESCROW AGENT
Section 6.1 — Duties and Responsibilities.
The Escrow Agent undertakes to perform only such duties as are expressly set forth in this Agreement. The Escrow Agent acts hereunder solely as a stakeholder and depositary and shall have no duties or obligations other than those specifically set forth herein. Without limiting the generality of the foregoing, the Escrow Agent shall not be deemed a trustee, fiduciary, or agent of any party hereto except to the limited extent expressly provided in this Agreement. The Escrow Agent shall have no duty to solicit any payments, no duty to confirm the identity or authority of any Person providing instructions, and no obligation to take any action not expressly required of it hereunder. The Escrow Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
Section 6.2 — Reliance.
The Escrow Agent shall be entitled to rely upon, and shall be fully protected in acting or refraining from acting upon, any written notice, instruction, instrument, certificate, request, direction, or other document furnished to it hereunder and believed by it in good faith to be genuine and to have been signed, presented, or delivered by the proper party or parties. The Escrow Agent may assume without inquiry that any Person purporting to give notice or instructions in accordance with the provisions of this Agreement has been duly authorized to do so. The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of legal counsel (which may be counsel to the Escrow Agent), and any such action or omission shall be conclusive evidence of the Escrow Agent's good faith. The Escrow Agent may consult with and obtain advice from legal counsel, accountants, and other professional advisors, and shall incur no liability for any action taken, suffered, or omitted in good faith in accordance with such advice.
Section 6.3 — Limitation of Liability.
The Escrow Agent shall not be liable for any act or omission in connection with this Agreement or the Escrow Fund, except to the extent that such act or omission constitutes the Escrow Agent's own gross negligence, willful misconduct, or fraud, as finally determined by a court of competent jurisdiction. In no event shall the Escrow Agent be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages of any kind whatsoever (including lost profits or lost business opportunities), regardless of the form of the claim or action and regardless of whether such damages were foreseeable. The aggregate liability of the Escrow Agent under this Agreement for any and all claims shall not exceed the total amount of fees actually received by the Escrow Agent hereunder during the twelve (12)-month period preceding the event giving rise to such liability. The Escrow Agent shall not be liable for any act or omission of any predecessor or successor escrow agent. The provisions of this Section 6.3 shall survive the termination of this Agreement and the resignation or removal of the Escrow Agent.
Section 6.4 — Interpleader.
If at any time the Escrow Agent is uncertain as to its duties or rights under this Agreement, or receives conflicting instructions, claims, or demands from the parties hereto (or any of them), the Escrow Agent shall be entitled, in its sole and absolute discretion, to:
(a) refrain from taking any action (other than to continue to hold the Escrow Fund in the Escrow Account) until it receives Joint Written Instructions from the Buyer Representative and the Sellers' Representative, or a final, non-appealable order or judgment of a court of competent jurisdiction, directing the disposition of the Escrow Fund or the portion thereof in dispute; or
(b) deposit the Escrow Fund (or any disputed portion thereof) with a court of competent jurisdiction in a proceeding in interpleader, naming all interested parties as defendants or respondents, whereupon the Escrow Agent shall have no further obligation or liability with respect to the amounts so deposited, except to the extent ordered by such court, and shall be entitled to recover its reasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with such interpleader action from the amounts so deposited or from the parties as provided in Article VIII.
Section 6.5 — Resignation or Removal.
(a) Resignation. The Escrow Agent may resign at any time upon thirty (30) days' prior written notice to the Buyer Representative and the Sellers' Representative. Such resignation shall take effect upon the appointment of a successor escrow agent and the delivery of the Escrow Fund to such successor, or upon such later date as may be specified in the notice of resignation.
(b) Removal. The Buyer Representative and the Sellers' Representative may jointly remove the Escrow Agent at any time, with or without cause, upon thirty (30) days' prior written notice to the Escrow Agent, signed by both the Buyer Representative and the Sellers' Representative.
(c) Appointment of Successor. Upon the effectiveness of any resignation or removal pursuant to this Section 6.5, the Buyer Representative and the Sellers' Representative shall use commercially reasonable efforts to jointly appoint a successor escrow agent within thirty (30) days. Upon such appointment, the resigning or removed Escrow Agent shall deliver the Escrow Fund to the successor escrow agent in accordance with written instructions from the Buyer Representative and the Sellers' Representative.
(d) Failure to Appoint Successor. If no successor escrow agent is appointed within sixty (60) days after the effectiveness of the resignation or removal of the Escrow Agent, the Escrow Agent may deposit the Escrow Fund with a court of competent jurisdiction and shall thereupon be discharged from all further duties and obligations under this Agreement (except to the extent that any obligations survive termination pursuant to Section 10.7).
(e) Final Accounting. Prior to delivering the Escrow Fund to a successor escrow agent or depositing it with a court, the resigning or removed Escrow Agent shall provide a final accounting of the Escrow Fund, including all deposits, Investment Earnings, distributions, deductions, and the remaining balance, to the Buyer Representative and the Sellers' Representative.
Section 6.6 — Successor Escrow Agent.
Any successor escrow agent appointed pursuant to Section 6.5 shall execute a written instrument accepting its appointment and assuming all duties and obligations of the Escrow Agent under this Agreement. Upon such acceptance, the successor escrow agent shall be bound by all terms and conditions of this Agreement as if it were an original party hereto, and the predecessor Escrow Agent shall be released from all further duties and obligations hereunder (except for those that survive termination). The successor escrow agent shall execute any additional instruments or documents reasonably necessary to evidence its acceptance of the appointment and to effectuate the transfer of the Escrow Fund.
ARTICLE VII — FEES AND EXPENSES OF ESCROW AGENT
Section 7.1 — Escrow Administration Fee.
The parties shall pay to the Escrow Agent an annual administration fee of Three Thousand Five Hundred Dollars ($3,500), payable in advance on the Closing Date and on each anniversary thereof during the term of this Agreement. The initial annual fee of Three Thousand Five Hundred Dollars ($3,500) shall be payable on the Closing Date. If this Agreement terminates on a date other than an anniversary of the Closing Date, the annual administration fee for such partial year shall not be prorated and no refund of any previously paid fee shall be required.
Section 7.2 — Allocation of Fees.
Unless otherwise agreed by the parties in writing, the escrow administration fee described in Section 7.1 shall be borne equally by Buyer (fifty percent (50%)) and the Sellers (fifty percent (50%)). The Sellers' portion of the escrow administration fee shall be allocated between the Sellers in accordance with their respective Pro Rata Shares, as follows:
(a) Eberhardt — fifty-five percent (55%) of the Sellers' share (i.e., 27.5% of the total fee); and
(b) Messina — forty-five percent (45%) of the Sellers' share (i.e., 22.5% of the total fee).
Section 7.3 — Expenses.
In addition to the annual administration fee, the Escrow Agent shall be entitled to reimbursement from the parties for all reasonable and documented out-of-pocket expenses incurred by the Escrow Agent in connection with the performance of its duties under this Agreement, including, without limitation, (a) legal fees and expenses incurred in connection with any interpleader action, dispute resolution proceeding, or other legal proceeding relating to the Escrow Fund, (b) wire transfer fees and other bank charges, and (c) any taxes, assessments, or charges imposed on the Escrow Agent in connection with its service hereunder. Such expenses shall be allocated between Buyer and the Sellers in the same manner as the escrow administration fee described in Section 7.2, unless the expense is attributable to the actions or requests of a particular party, in which case such party shall bear such expense in full.
Section 7.4 — Payment from Escrow Fund.
If Buyer and the Sellers fail to pay any fees or expenses due to the Escrow Agent under this Article VII within thirty (30) calendar days after the Escrow Agent's delivery of an invoice therefor, the Escrow Agent may, upon ten (10) Business Days' prior written notice to the Buyer Representative and the Sellers' Representative, deduct such unpaid amounts directly from the Escrow Fund. Any such deduction shall reduce the Escrow Fund and shall be allocated between the parties in accordance with Section 7.2. The Escrow Agent shall provide a written accounting of any amounts so deducted to the Buyer Representative and the Sellers' Representative promptly following such deduction.
ARTICLE VIII — INDEMNIFICATION OF ESCROW AGENT
Section 8.1 — Indemnification.
Buyer and the Sellers, jointly and severally (with the Sellers' obligations allocated between Eberhardt and Messina in accordance with their respective Pro Rata Shares — Eberhardt: 55%; Messina: 45%), shall indemnify, defend, and hold harmless the Escrow Agent and its officers, directors, members, managers, employees, agents, successors, and assigns (collectively, the "Escrow Agent Indemnified Parties") from and against any and all claims, demands, actions, suits, proceedings, investigations, losses, damages, liabilities, judgments, settlements, fines, penalties, costs, and expenses (including reasonable attorneys' fees and disbursements) (collectively, "Escrow Agent Losses") arising out of, relating to, or in connection with the acceptance of appointment as, or the performance or non-performance of duties by, the Escrow Agent under this Agreement; provided, however, that no Escrow Agent Indemnified Party shall be entitled to indemnification under this Section 8.1 to the extent that such Escrow Agent Losses are finally determined by a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct, or fraud of such Escrow Agent Indemnified Party.
The obligations of Buyer and the Sellers under this Section 8.1 shall survive the termination of this Agreement, the resignation or removal of the Escrow Agent, and the final distribution of the Escrow Fund. The Escrow Agent shall promptly notify the Buyer Representative and the Sellers' Representative of any claim for which indemnification may be sought under this Section 8.1, but the failure to provide such notice shall not relieve Buyer or the Sellers of their indemnification obligations, except to the extent that such failure materially prejudices the defense of such claim.
ARTICLE IX — TERMINATION
Section 9.1 — Termination.
This Agreement shall terminate upon the earliest to occur of:
(a) the final distribution of the entire Escrow Fund in accordance with Article V hereof, including the distribution of any Reserve Amount following the resolution of all Pending Claims; and
(b) the delivery of Joint Written Instructions from the Buyer Representative and the Sellers' Representative directing the Escrow Agent to distribute the remaining Escrow Fund (including any Investment Earnings thereon) and close the Escrow Account.
Upon termination of this Agreement, the Escrow Agent shall have no further duties, obligations, or responsibilities hereunder, except for those provisions that by their express terms survive the termination of this Agreement, including Section 6.3 (Limitation of Liability), Section 8.1 (Indemnification of Escrow Agent), and Section 10.7 (Survival). The Escrow Agent shall deliver written confirmation of the closure of the Escrow Account to the Buyer Representative and the Sellers' Representative promptly following termination.
ARTICLE X — GENERAL PROVISIONS
Section 10.1 — Governing Law.
This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 10.2 — Jurisdiction; Venue.
Each party hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court sitting in the State of Delaware) for the purposes of any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and each party irrevocably and unconditionally waives any objection to the laying of venue of any such action, suit, or proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit, or proceeding has been brought in an inconvenient forum. Each party agrees that a final, non-appealable judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Process in any such action, suit, or proceeding may be served on any party anywhere in the world, including by sending it by registered or certified mail or by any other means permitted by applicable law.
Section 10.3 — Notices.
All notices, requests, demands, consents, instructions, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given or delivered: (a) upon personal delivery to the party to be notified; (b) one (1) Business Day after deposit with a nationally recognized overnight courier service, with all charges prepaid or billed to the sender, for next-Business Day delivery; or (c) upon confirmation of receipt of electronic mail (with a confirming copy sent by nationally recognized overnight courier service on the same day), in each case addressed to the applicable party at the address set forth below (or such other address as such party may designate by written notice to the other parties in accordance with this Section 10.3):
If to Buyer:
Lumos Analytics Inc. 450 Mission Street, Suite 2200 San Francisco, California 94105
Attention: Margaux Fontaine, General Counsel
Email: mfontaine@lumosanalytics.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 101 California Street, Suite 4500 San Francisco, California 94111
Attention: Harrison Wexford
Email: hwexford@calderwoodharkness.com
If to Sellers or Sellers' Representative:
Jonah Eberhardt c/o Lumos Analytics Inc. 450 Mission Street, Suite 2200 San Francisco, California 94105
Email: jeberhardt@lumosanalytics.com
(or such other address as the Sellers' Representative may designate in writing)
with a copy (which shall not constitute notice) to:
Cartwright, Daugherty & Voss LLP 1700 Market Street, Suite 2800 Philadelphia, Pennsylvania 19103
Attention: Sabrina Delvecchio
Email: sdelvecchio@cdvlaw.com
If to Escrow Agent:
Fenwick Escrow Services LLC 3 Park Plaza, Suite 1100 Irvine, California 92614
Attention: Dana Whitford, Escrow Officer
Email: dwhitford@fenwickescrow.com
Section 10.4 — Entire Agreement.
This Agreement, together with the Merger Agreement and the ancillary agreements, documents, certificates, and instruments referred to therein, constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations, warranties, commitments, understandings, and arrangements, whether written or oral, relating to such subject matter. No party hereto has relied on any promise, representation, or warranty, express or implied, not set forth in this Agreement.
Section 10.5 — Amendments and Waivers.
This Agreement may not be amended, modified, supplemented, or otherwise changed except by a written instrument duly executed by Buyer, the Sellers' Representative, and the Escrow Agent. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the party against whom enforcement of such waiver is sought. No waiver by any party of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default, whether of the same or a different provision. No failure or delay on the part of any party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
Section 10.6 — Assignment.
No party hereto may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of each of the other parties hereto; provided, however, that Buyer may assign its rights (but not its obligations) under this Agreement to any direct or indirect wholly owned subsidiary of Buyer or to any successor by merger, consolidation, or acquisition of all or substantially all of the assets or equity interests of Buyer, without the prior written consent of any other party hereto, so long as (a) Buyer provides written notice of such assignment to the Sellers' Representative and the Escrow Agent within ten (10) Business Days after the effective date of such assignment, and (b) Buyer remains liable for all of its obligations under this Agreement following any such assignment. Any purported assignment in violation of this Section 10.6 shall be null and void and of no force or effect.
Section 10.7 — Survival.
The provisions of Section 6.3 (Limitation of Liability), Section 8.1 (Indemnification of Escrow Agent), this Section 10.7, and any other provision of this Agreement that by its nature or express terms is intended to survive the termination of this Agreement shall survive the termination of this Agreement and the final distribution of the Escrow Fund indefinitely (or, with respect to claims under Section 8.1, until the expiration of the applicable statute of limitations).
Section 10.8 — Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. The exchange of copies of this Agreement or of signature pages by facsimile, PDF, or other electronic transmission (including via Brightwater Software, Ashford Health IT, or similar electronic signature platform) shall constitute effective execution and delivery of this Agreement and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile, PDF, or other electronic means shall be deemed to be original signatures for all purposes.
Section 10.9 — Severability.
If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable in any jurisdiction, the remainder of the terms, provisions, covenants, and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, and the parties hereto shall use commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such invalid, illegal, void, or unenforceable term or provision. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants, and restrictions without including any of such that may be hereafter declared invalid, illegal, void, or unenforceable.
Section 10.10 — No Third-Party Beneficiaries.
This Agreement is for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns, and nothing contained in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit, remedy, or claim of any kind whatsoever under or by reason of this Agreement. Without limiting the generality of the foregoing, no creditor, shareholder, member, partner, employee, or representative of any party hereto shall have any right to enforce any provision of this Agreement.
Section 10.11 — Sellers' Representative.
(a) Jonah Eberhardt is hereby irrevocably appointed as the Sellers' Representative, with full power and authority to act on behalf of both Sellers in all matters arising under or in connection with this Agreement, including, without limitation:
(i) the delivery, receipt, and review of all Claim Certificates, Objection Notices, Joint Written Instructions, and any other notices, certificates, consents, or communications under this Agreement;
(ii) the negotiation and resolution of any Disputed Amounts;
(iii) the delivery of distribution instructions (including wire transfer instructions) on behalf of the Sellers;
(iv) the agreement to any amendment, modification, supplement, or waiver of this Agreement on behalf of the Sellers;
(v) the taking of any and all other actions and the making of any decisions that the Sellers' Representative deems necessary or appropriate in connection with the foregoing.
(b) Talia Messina hereby consents to the appointment of Jonah Eberhardt as the Sellers' Representative and agrees to be bound by the acts, decisions, and instructions of the Sellers' Representative as if she had taken such actions or made such decisions herself. Messina acknowledges that Buyer and the Escrow Agent shall be entitled to rely on the actions and instructions of the Sellers' Representative without independent verification or inquiry.
(c) The Sellers' Representative shall not be liable