Common use of Distribution of Escrow Fund Clause in Contracts

Distribution of Escrow Fund. (a) On the first business day immediately following the second anniversary of the Effective Time (the "Release Date"), the Escrow Agent shall ------------ distribute to the Talaria Stockholder Representative, on behalf of the Talaria Stockholders, the balance of the remaining Escrow Fund then held by the Escrow Agent pursuant to this Agreement, less the aggregate amount of such Escrow Fund ---- (if any) as is then subject to a pending Claim Certificate (whether or not a Claim Denial has been given with respect thereto). To the extent any portion of the Escrow Fund shall remain in escrow pursuant to the preceding sentence, the form of such remaining Escrow Fund (cash, shares of Esperion Common or a combination thereof) shall be in Esperion's sole discretion. For this purpose, each share of Esperion Common shall be valued at [****] (**) of its Fair Market Value as of the Release Date. Any part of the Escrow Fund that is not distributed to the Talaria Stockholder Representative on the Release Date because it is subject to a pending Claim Certificate shall be distributed (y) in accordance with the written agreement of Esperion and the Talaria Stockholder Representative, or (z) pursuant to a Final Determination. (b) Subject to Section 5.4(b)(viii) of the Merger Agreement, all payments to Esperion or any other Esperion Indemnified Parties from the Escrow Fund in respect of Damages, if any, shall be made in the form of cash, shares of Esperion Common or a combination thereof, in Esperion's sole discretion. For this purpose, each share of Esperion Common shall be valued at its Fair Market Value at the time the Escrow Agent is required to release such shares of Esperion Common to Esperion or the other Esperion Indemnified Parties. (c) In connection with any distribution of shares of Esperion Common held in the Escrow Fund, the Escrow Agent shall execute and deliver any instruments of assignment necessary to provide the recipient of such securities with legal and valid title thereto and record ownership thereof. With respect to such transfers of record ownership by the Escrow Agent, Esperion will take all actions in connection with the issuance and re-issuance of certificates for such shares of Esperion Common and the registration and re-registration of such shares of Esperion Common on Esperion's books as may be necessary or appropriate to reflect the record ownership of such securities contemplated by this Agreement. (d) All interest or dividends on any of the Escrow Fund and any shares of capital stock distributed on account of any of the Escrow Shares shall become part of the Escrow Fund and shall be subject to the provisions of this Agreement.

Distribution of Escrow Fund. (a) On Upon the first business day immediately following Escrow Termination Date, any amount remaining in the second anniversary Escrow Fund shall promptly be delivered to the Exchange Agent for distribution to the Company Stockholders, subject to applicable withholding Taxes; provided, however, that the Escrow Fund shall not terminate with respect to any amount subject to any unresolved claims for indemnifiable Losses for which any claims for indemnification properly were made prior to the Cut-Off Date on or prior to the Escrow Termination Date and in accordance with the provisions of this Article VII, and no such amounts shall be distributed to the Effective Time (Exchange Agent, Parent or the "Release Date")Surviving Entity until the final resolution of such claims has been determined. As soon as any such claim has been resolved, the Escrow Agent shall ------------ distribute to the Talaria Stockholder Representative, on behalf of the Talaria Stockholders, the balance of deliver the remaining Escrow Fund then held by the Escrow Agent pursuant to this Agreement, less the aggregate amount of such Escrow Fund ---- (if anyportion(s) as is then subject to a pending Claim Certificate (whether or not a Claim Denial has been given with respect thereto). To the extent any portion of the Escrow Fund shall remain in escrow pursuant not reasonably necessary to satisfy any remaining unresolved claims to the preceding sentenceExchange Agent, subject to applicable withholding Taxes, for distribution to the form of such remaining Escrow Fund (cash, shares of Esperion Common or a combination thereof) Company Stockholders. Each Company Stockholder shall be in Esperion's sole discretion. For this purpose, each share entitled to its Pro Rata Portion of Esperion Common shall be valued at [****] (**) of its Fair Market Value as of the Release Date. Any part of the Escrow Fund that is not any amount distributed to the Talaria Stockholder Representative on the Release Date because it is subject to a pending Claim Certificate shall be distributed (y) in accordance with the written agreement of Esperion and the Talaria Stockholder Representative, or (z) pursuant to a Final Determination. (b) Subject to Section 5.4(b)(viii) of the Merger Agreement, all payments to Esperion or any other Esperion Indemnified Parties from the Escrow Fund pursuant to this Section 7.7 and the Escrow Agreement, with each cash amount rounded to the nearest whole cent ($0.01) and each amount of Parent Common Stock rounded to the nearest share of Parent Common Stock. Any amounts to remain in respect of Damages, if any, the Escrow Fund to satisfy unresolved claims shall be made in the form of cash, cash and shares of Esperion Parent Common or Stock in a combination thereof, in Esperion's sole discretion. For this purpose, each share ratio of Esperion cash to shares of Parent Common shall be Stock equal to fifty percent (50%) cash and fifty percent (50%) shares (with the shares of Parent Common Stock being valued at its Fair Market Value at the time volume weighted average price of Parent Common Stock, as recorded on the Escrow Agent NYSE, during the twenty (20) trading day period ending on the trading day immediately preceding the date on which the relevant distribution is required to release such shares of Esperion Common to Esperion or the other Esperion Indemnified Parties. (c) In connection with any distribution of shares of Esperion Common held in the Escrow Fund, the Escrow Agent shall execute and deliver any instruments of assignment necessary to provide the recipient of such securities with legal and valid title thereto and record ownership thereof. With respect to such transfers of record ownership made by the Escrow Agent); provided, Esperion will take all actions however, that if there shall remain in connection with the issuance and re-issuance of certificates for such shares of Esperion Common and the registration and re-registration of such shares of Esperion Common on Esperion's books as may be necessary or appropriate to reflect the record ownership of such securities contemplated by this Agreement. (d) All interest or dividends on any of the Escrow Fund and any an insufficient amount of either cash or shares of capital stock distributed on account of any of Parent Common Stock necessary for the Escrow Shares shall become part Agent to retain the amounts necessary to satisfy any unresolved claims, the ratio of cash and shares of Parent Common Stock to remain in the Escrow Fund and shall be equitably adjusted as necessary to pay the full amount of the relevant Losses (subject to the provisions exhaustion of this Agreementthe entire Escrow Fund).

Distribution of Escrow Fund. (ai) On the first business day immediately following the second anniversary of the Effective Time (the "Release Date"), the Escrow Agent shall ------------ distribute Subject to the Talaria Stockholder Representativefollowing requirements, on behalf of the Talaria Stockholders, the balance of the remaining Escrow Fund then held by the Escrow Agent pursuant to this Agreement, less the aggregate amount of such Escrow Fund ---- (if any) as is then subject to a pending Claim Certificate (whether or not a Claim Denial has been given with respect thereto). To the extent any portion of the Escrow Fund shall remain be in escrow pursuant existence immediately following the Effective Time and shall terminate at 11:59 p.m., California time, on the date that is eighteen (18) months after the Closing Date (the “Escrow Period”). (ii) On the date that is twelve (12) months after the Closing Date, Parent and the Shareholder Representative shall jointly instruct the Escrow Agent to (A) retain in the Escrow Fund an amount of Parent Common Stock (valued at the Closing Price) or cash, if applicable, equal to the preceding sentenceSubsequent Escrow Amount, the form of such remaining which Subsequent Escrow Fund (cash, shares of Esperion Common or Amount shall remain a combination thereof) shall be in Esperion's sole discretion. For this purpose, each share of Esperion Common shall be valued at [****] (**) of its Fair Market Value as of the Release Date. Any part of the Escrow Fund and (B) distribute any Parent Common Stock or cash, as the case may be, remaining in the Escrow Fund (after setting aside an amount of Parent Common Stock (valued at the Closing Price) or cash, as the case may be, equal to the Subsequent Escrow Amount) to the Indemnifying Parties in accordance with such Indemnifying Parties’ respective Pro-Rata Portions. (iii) Within three (3) Business Days following the expiration of the Escrow Period, Parent and the Shareholder Representative shall jointly instruct the Escrow Agent to distribute any Parent Common Stock or cash, as the case may be, remaining in the Escrow Fund to the Indemnifying Parties in accordance with their respective Pro-Rata Portions following such termination as provided in Section 8.7(b)(v); provided, however, that is the Escrow Fund shall not terminate, and the Escrow Agent shall not disburse any shares of Parent Common Stock or cash, as the case may be, from the Escrow Fund with respect to any amount in respect of any unsatisfied claims specified in any Claim Certificate in accordance with Section 8.2 (“Unresolved Claims”) delivered prior to the expiration of the Escrow Period with respect to facts and circumstances existing prior to the expiration of the Escrow Period, and any such amount shall not be distributed to the Talaria Stockholder Representative on Indemnifying Party or Parties at such time and shall remain in the Release Date because it is subject to a pending Claim Certificate shall be distributed (y) in accordance with the written agreement of Esperion and the Talaria Stockholder Representative, Escrow Fund until such Unresolved Claims have been resolved or (z) satisfied pursuant to a Final Determinationthis Article VIII. (biv) Subject Promptly following such time as all claims for indemnification for Indemnification Matters under Section 8.2(a)(ix) have been fully resolved, Parent and the Shareholder Representative shall jointly instruct the Escrow Agent to Section 5.4(b)(viii) distribute to the Indemnifying Parties an amount equal to the Additional Escrow Amount minus the amount of all Losses of the Merger AgreementIndemnified Parties with respect to Indemnification Matters under Section 8.2(a)(ix). Notwithstanding the foregoing, all payments (A) the Additional Escrow Amount may be distributed to Esperion or any other Esperion the Indemnified Parties from the Escrow Fund only in connection with any Losses paid, incurred or sustained by the Indemnified Party or Parties, or any of them, directly or indirectly, as a result of, arising out of or in connection with Indemnifiable Matters under Section 8.2(a)(ix) and (B) the existence, availability or unavailability of the Additional Escrow Amount as part of the Escrow Fund shall not impair or alter Parent’s ability to seek recourse to the remainder of the Escrow Fund in connection with such Indemnifiable Matters under Section 8.2(a)(ix) or otherwise. (v) As soon as all such claims have been resolved, Parent and the Shareholder Representative shall jointly instruct the Escrow Agent to deliver the remaining portion of the Escrow Fund, if any, not required to satisfy such Unresolved Claims, (A) first, to the Shareholder Representative for any Shareholder Representative Expenses, and (B) second, to the Indemnifying Party or Parties. Deliveries of shares of Parent Common Stock or cash out of the Escrow Fund to the Indemnifying Party or Parties pursuant to this Section 8.7 shall be made in proportion to their respective Pro Rata Portions of the remaining amounts in the Escrow Fund, with the amount delivered to each Company Securityholder rounded to the nearest one hundredth (0.01) (with amounts 0.005 and above rounded up), in respect of Damagescash and rounded down, to the nearest share, in respect of Parent Common Stock. Notwithstanding anything to the contrary in this Agreement, the Escrow Agent shall be entitled to deduct and withhold from any property in the Escrow Fund deliverable pursuant to this Agreement to any former holder of Company Capital Stock such amounts as are required to be deducted or withheld therefrom under any provision of federal, state, local or foreign tax law or under any applicable legal requirement. To the extent such amounts are so deducted or withheld and paid to the appropriate Governmental Entity, such amounts shall be treated for all purposes as having been paid to the Person to whom such amounts would otherwise have been paid. (vi) For purposes of this Agreement, if the Escrow Fund consists of (A) shares of Parent Common Stock, the amount of shares of Parent Common Stock in the Escrow Fund to be returned to the Indemnified Parties in respect of any indemnifiable Losses, if any, shall be made in equal the form applicable amount of the Losses divided by the Closing Price and (B) cash, shares the amount of Esperion Common or a combination thereof, in Esperion's sole discretion. For this purpose, each share of Esperion Common shall be valued at its Fair Market Value at the time the Escrow Agent is required to release such shares of Esperion Common to Esperion or the other Esperion Indemnified Parties. (c) In connection with any distribution of shares of Esperion Common held cash in the Escrow FundFund to be returned to the Indemnified Parties in respect of any indemnifiable Losses, if any, shall equal the Escrow Agent shall execute and deliver any instruments of assignment necessary to provide the recipient of such securities with legal and valid title thereto and record ownership thereof. With respect to such transfers of record ownership by the Escrow Agent, Esperion will take all actions in connection with the issuance and re-issuance of certificates for such shares of Esperion Common and the registration and re-registration of such shares of Esperion Common on Esperion's books as may be necessary or appropriate to reflect the record ownership of such securities contemplated by this Agreement. (d) All interest or dividends on any applicable amount of the Escrow Fund and any shares of capital stock distributed on account of any of the Escrow Shares shall become part of the Escrow Fund and shall be subject to the provisions of this AgreementLosses.