Common use of Exchange Agent; Payment Funds Clause in Contracts

Exchange Agent; Payment Funds. (i) Prior to the Effective Time, Parent shall appoint a bank or trust company as may be approved by the Company (which approval shall not be unreasonably withheld) as exchange and paying agent (the “Exchange Agent”) for the exchange and payment of the Merger Consideration (other than payment of Closing Merger Consideration to the Stockholder Representative and its designees, which payment shall be exclusively governed by Section 2.11 hereof). (ii) At the Effective Time, Parent shall deposit and/or shall cause the proceeds of any financing to, or any cash of, the Surviving Corporation and its Subsidiaries to be deposited (A) with the Exchange Agent in trust for the benefit of holders of shares of Company Stock, an aggregate amount equal to the Closing Merger Consideration less the Stockholder Representative Closing Merger Consideration (as defined below) and (B) with the Escrow Agent an aggregate amount equal to the Holdback Consideration. Any cash deposited with the Exchange Agent in trust for the benefit of holders of shares of Company Stock shall hereinafter be referred to as the “Exchange Fund.” The Parent shall also deliver to the Exchange Agent as soon as possible after the Effective Time a list (the “Schedule of Stockholder Closing Merger Consideration”) of holders of Company Stock as of immediately prior to the Effective Time approved by the Company (after giving effect to the Management Rollover Transaction) and the amount to be paid in cash to such holder in respect of the Company Stock so delivered; provided that such Schedule of Stockholder Closing Merger Consideration shall not contain reference to the portion of the Closing Merger Consideration paid to the Stockholder Representative in its capacity as a holder of Company Stock (with it being understood that no payments from the Exchange Fund shall be made to the Stockholder Representative or any of its designees by the Exchange Agent except to the extent that such designee owns shares directly in the Company as of immediately prior to the Closing) and the Exchange Agent shall be entitled to rely on such list exclusively in distributing the Closing Merger Consideration in the Exchange Fund.

Exchange Agent; Payment Funds. (ia) Prior to the Effective Time, Parent shall appoint a bank or trust company company, as may be approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld) as exchange and paying agent (the “Exchange Agent”) ), for the exchange and payment of the Merger Consideration (other than payment of Closing Merger Consideration to the Stockholder Representative and its designees, which payment shall be exclusively governed by Section 2.11 hereof)Consideration. (iib) At or prior to the Effective Time, Parent shall deposit and/or shall cause the proceeds of any financing to, or any cash of, the Surviving Corporation and its Subsidiaries to be deposited (A) with the Exchange Agent in trust for the benefit of holders of shares of Company Stock, an aggregate amount equal to the Closing Merger Consideration less the Stockholder Representative Closing Merger Consideration (as defined below) and (B) with the Escrow Agent an aggregate amount equal to the Holdback Consideration. Any cash deposited with the Exchange Agent in trust for the benefit of holders of shares of Company Stock and Company Options, an amount in cash sufficient to make all payments pursuant to Section 2.2 (other than the Holdback Consideration, which shall be deposited by Parent with the Escrow Agent at or prior to the Effective Time, and the Stockholder Representative Expense Amount, which shall be deposited by Parent with the Stockholder Representative at or prior to the Effective Time). Any cash deposited with the Exchange Agent pursuant to this Section 2.1(b) shall hereinafter be referred to as the “Exchange Fund.” The Parent shall also deliver to the Exchange Agent as soon as possible after the Effective Time a list ” (the “Schedule of Stockholder Closing Merger Consideration”c) of holders of Company Stock as of immediately At or prior to the Effective Time approved by Time, Parent shall deposit with the Company (after giving effect to Stockholder Representative for the Management Rollover Transaction) and the amount to be paid in cash to such holder in respect benefit of the Stockholder Representative, the holders of shares of Company Common Stock so delivered; provided that such Schedule of Stockholder Closing Merger Consideration shall not contain reference to the portion of the Closing Merger Consideration paid and Company Options, as their interests may appear, an amount equal to the Stockholder Representative in its capacity as a holder of Company Stock (with it being understood that no payments from the Exchange Fund Expense Amount. The Stockholder Representative Expense Amount shall be made to used by the Stockholder Representative or any to fund the Stockholder Representative’s expenses in the performance of its designees by duties as the Exchange Agent except to Stockholder Representative. To the extent that such designee owns shares directly in any portion of the Company as of immediately Stockholder Representative Expense Amount is not so utilized on or prior to the Closing) and the Exchange Agent shall be entitled to rely on such list exclusively in distributing three year anniversary of the Closing Merger Consideration Date or is not expected to be so utilized, within ten (10) Business Days after the forty-second month anniversary of the Closing Date, the Stockholder Representative shall deliver any remaining portion of the Stockholder Representative Expense Amount to the holders of shares Company Common Stock and Company Options in proportion to their respective holdings of shares of Company Common Stock and Company Options, as the Exchange Fundcase may be, at the Effective Time. Notwithstanding the foregoing, the Stockholder Representative may in its sole discretion, deliver at any time any portion of the Stockholder Representative Expense Amount to the holders of shares Company Common Stock and Company Options in proportion to their respective holdings of shares of Company Common Stock and Company Options, as the case may be, at the Effective Time.

Exchange Agent; Payment Funds. (ia) Prior to the Effective Time, Parent shall appoint a bank or trust company as may be approved by the Company (which approval shall not be unreasonably withheld) as exchange and paying agent (the “Exchange Agent”) for the exchange and payment of the Merger Consideration (other than payment of Closing Merger Consideration to the Stockholder Representative and its designees, which payment shall be exclusively governed by Section 2.11 hereof)Consideration. (iib) At or prior to the Effective Time, Parent shall deposit and/or shall cause the proceeds of any financing to, or any cash of, the Surviving Corporation and its Subsidiaries to be deposited (A) with the Exchange Agent in trust for the benefit of holders of shares of Company StockStock and Company Warrants, an aggregate amount equal in cash sufficient to make all payments pursuant to Section 2.2 (other than the Closing Merger Consideration less the Stockholder Representative Closing Merger Consideration (as defined below) and (B) Holdback Consideration, which shall be deposited by Parent with the Escrow Agent an aggregate amount equal at or prior to the Holdback ConsiderationEffective Time, and the Stockholder Representative Expense Amount, which shall be deposited by Parent with the Stockholder Representative at or prior to the Effective Time). Any cash deposited with the Exchange Agent in trust for the benefit of holders of shares of Company Stock shall hereinafter be referred to as the “Exchange Fund”.” The Parent shall also deliver to the Exchange Agent as soon as possible after the Effective Time a list (the “Schedule of Stockholder Closing Merger Consideration”c) of holders of Company Stock as of immediately At or prior to the Effective Time approved Time, Parent shall deposit with the Escrow Agent for the benefit of Parent, the holders of shares of Company Stock and Company Warrants, as their interests may appear, an amount equal to the Holdback Consideration, which amount shall be held by the Company Escrow Agent in accordance with the terms of this Agreement. (after giving effect d) At or prior to the Management Rollover Transaction) and Effective Time, Parent shall deposit with the amount to be paid in cash to such holder in respect Stockholder Representative for the benefit of the Stockholder Representative, the holders of shares of Company Common Stock so delivered; provided that such Schedule of Stockholder Closing Merger Consideration shall not contain reference to the portion of the Closing Merger Consideration paid and Company Warrants, as their interests may appear, an amount equal to the Stockholder Representative in its capacity as a holder of Company Stock (with it being understood that no payments from the Exchange Fund Expense Amount. The Stockholder Representative Expense Amount shall be made to used by the Stockholder Representative or any to fund the Stockholder Representative’s expenses in the performance of its designees by duties as the Exchange Agent except to Stockholder Representative. To the extent that such designee owns shares directly in any portion of the Company as of immediately Stockholder Representative Expense Amount is not so utilized on or prior to the Closing) and the Exchange Agent shall be entitled to rely on such list exclusively in distributing first anniversary of the Closing Merger Consideration Date or is not expected to be so utilized, within 10 Business Days after the first year anniversary of the Closing Date, the Stockholder Representative shall deliver any remaining portion of the Stockholder Representative Expense Amount to the holders of shares Company Common Stock and Company Warrants in proportion to their respective holdings of shares of Company Common Stock and Company Warrants, as the Exchange Fundcase may be, at the Effective Time.