Common use of Exchange Fund Clause in Contracts

Exchange Fund. Prior to the Closing, Parent shall deposit (or cause to be deposited) with the Paying Agent, for payment to and for the sole benefit of the Company Stockholders pursuant to the provisions of this Article II, an amount of cash equal to the aggregate consideration to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount being referred to herein as the “Exchange Fund”). Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article II, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective Time.

Exchange Fund. Prior At least one (1) Business Day prior to the ClosingEffective Time, Parent shall deposit (deposit, or shall cause to be deposited, with a U.S. bank or trust company that shall be appointed by Parent (and reasonably satisfactory to the Company) with to act as a paying agent hereunder (the “Paying Agent”), in trust for the benefit of holders of Company Common Shares, cash in U.S. dollars that is sufficient in the aggregate for the Paying Agent, Agent to make the payments of the aggregate Merger Consideration in exchange for payment to and for the sole benefit all of the Company Stockholders Common Shares issued and outstanding immediately prior to the Effective Time (other than the Dissenting Shares and Excluded shares), payable upon due surrender of Certificates or Book-Entry Shares pursuant to the provisions of this Article II, an amount of cash equal to the aggregate consideration to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount in the aggregate and any proceeds thereon being hereinafter referred to herein as the “Exchange Fund”). Until disbursed in accordance In the event any Dissenting Shares cease to be Dissenting Shares, prior to the termination of the Exchange Fund pursuant to Section 2.2(d), Parent shall deposit, or cause to be deposited, with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, Agent in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fund, or an amount equal to the product of (i) the Merger Consideration multiplied by (ii) the number of such formerly Dissenting Shares. In the event the Exchange Fund diminishes for any reason below shall be insufficient to make the amount required to promptly pay in full the cash amounts payments contemplated by this Article IIAgreement, Parent shall, or shall cause Merger Sub or the Surviving Corporation to, promptly replace or restore deposit additional funds with the cash Paying Agent in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level an amount sufficient to make in full such payments contemplated by this Article IIpayments. The Exchange Fund shall not be used for any purpose other than as that is not expressly provided for in this Agreement. The Exchange Fund shall be invested by the Paying Agent as reasonably directed by Parent or Merger SubParent; provided, however, that (i) any investment of such cash shall in its sole discretion, pending payment thereof by the Paying Agent all events be limited to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in (A) direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the United States U.S. government or any agency or instrumentality thereof, (B) in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or (C) in deposit accounts, certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 10 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from , or (D) money market funds investing solely in a combination of the foregoing and, in any such investments case, no instrument shall be have a maturity exceeding three months and (ii) no such investment or loss thereon shall affect the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue amounts payable to the benefit of former holders of Company Common Shares as of immediately prior pursuant to the Effective Timethis Article II.

Exchange Fund. Prior (i) On or prior to the ClosingClosing Date, Parent shall deposit (deposit, or shall cause to be deposited) , with the Paying Agent, for Agent cash sufficient to make the payment to and for the sole benefit of the Company Stockholders aggregate Merger Consideration payable pursuant to the provisions Section 2.01(c), by wire transfer of this Article II, an amount of cash equal to the aggregate consideration to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) immediately available funds (such cash amount being referred to herein as cash, the “Exchange Fund”). The amounts deposited by or on behalf of Parent pursuant to this Section 2.02(b)(i) will be sufficient in the aggregate, when taken together with the amount to be deposited by the Company pursuant to Section 2.02(b)(ii), if any, for the Paying Agent to make the payments of the aggregate consideration to which the holders of shares of Common Stock become entitled pursuant to Section 2.01(c). Subject to Section 2.02(b)(iii), the Exchange Fund shall not be used for any purpose other than to pay the aggregate Merger Consideration in the Merger. (ii) At the Closing, after all conditions set forth in ARTICLE VII are satisfied or, to the extent permitted by this Agreement and applicable Law, waived and Parent has confirmed in writing that it will consummate the Closing, then the Company will, in consultation with and in accordance with the wiring instructions given by Parent, deposit, or cause to be deposited, into the Exchange Fund, by wire transfer of immediately available funds, an amount of cash of the Company and the Company Subsidiaries designated by Parent (such designation to be made no less than three (3) Business Days prior to the Closing Date), which amount shall not exceed the Available Cash Amount. (iii) Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, Agent shall invest any cash in the Exchange Fund if and as directed by Parent or the Surviving CorporationParent; provided, however, that such investment shall be in obligations of of, or guaranteed by by, the United States of America or America, in commercial paper obligations of an agency issuers organized under the Law of the United States of America which are backed by the full faith and credit a state of the United States of America, rated P-1 or A-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Ratings Service, respectively, or in certificates of deposit, bank repurchase agreements or bankers’ acceptances of domestic commercial banks with capital exceeding $10 billion (based on the most recent publicly available financial statement of such bank), or in mutual or money market funds investing in such assets, and in any case, no such instrument shall have a maturity that may prevent or delay payments to be made pursuant to Section 2.01. Any interest and other income resulting from such investments shall be paid to Parent or to, and be the Surviving Corporation in accordance with Section 2.8(g)property of, Parent. No investment losses resulting from investment of the Exchange Fund shall diminish the rights of any of the Company’s stockholders to receive the Merger Consideration or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to any other payment as provided herein. To the extent that there are any losses with respect to any such investments of the Exchange Fund, or the Exchange Fund diminishes for any other reason below the amount level required to promptly pay in full make prompt cash payment of the cash amounts contemplated by this Article IIaggregate funds required to be paid pursuant to the terms hereof, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make such cash payments. For the avoidance of doubt, any consideration payable in full such payments contemplated by this Article II. The Exchange Fund shall respect of Company Stock Options, Company RSUs or Company PSUs will not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by deposited with the Paying Agent as directed by Parent or Merger Sub, but will instead be paid in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks accordance with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective TimeSection 6.04.

Exchange Fund. Prior Within ten (10) Business Days after the date of this Agreement, Acquiror shall appoint a financial institution or other appropriate entity selected by Acquiror to act as exchange agent for the Merger (in such capacity, the "Exchange Agent"). At or prior to the ClosingEffective Time, Parent Acquiror shall deposit (deposit, or shall cause to be deposited) , with the Paying Agent, for payment to and such Exchange Agent for the sole benefit of the Company Stockholders pursuant to the provisions of this Article II, an amount of cash equal to the aggregate consideration to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount being referred to herein as the “Exchange Fund”). Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect the consideration to which holders of certificates representing Company Common Shares are entitled under this Article II ("Old Certificates") and to the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article II, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of In the Company Shares as of Money Options and Warrants that remain outstanding immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent for exchange and payment in accordance with this Article II, certificates representing the Total Stock Consideration ("New Certificates") and the Total Cash Consideration (such cash and New Certificates, together with any dividends or distributions with respect thereto with a record date occurring on or after the Effective Time, and any amounts delivered by the Company to the Exchange Agent pursuant to Section 5.23 being hereinafter collectively referred to as the "Exchange Fund") to be paid pursuant to this Article II in exchange for outstanding Company Common Shares, to the holders of In the Money Options that remain unexercised, vested and outstanding immediately prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole Effective Time and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of Warrants that remain outstanding immediately prior to the Effective Time. The Exchange Agent shall have no liability for any actions taken, or failures to act, with respect to this Agreement in the absence of gross negligence or intentional misconduct on the part of the Exchange Agent. The Exchange Fund represents the total consideration to be paid to all holders of Company Common Shares, Options and Warrants pursuant to this Agreement and neither the Company, Acquiror nor the Exchange Agent shall be required to pay any additional amounts to such holders of Company Common Shares, Options or Warrants pursuant to this Agreement (other than any additional amounts required due to rounding pursuant to Section 2.5(a), cash paid in lieu of fractional shares pursuant to Section 2.5(b) and any amounts required to be paid to holders of Dissenting Shares in excess of the amounts allocated pursuant to Section 2.6).

Exchange Fund. Prior Promptly after (and in any event no later than the third (3rd) Business Day after) the Acceptance Time, Parent shall deposit (or cause to be deposited) with the Depositary Agent, for payment to the holders of shares of Company Common Stock and Company Series B Preferred Stock, the Common Offer Price or the Preferred Offer Price, as applicable, to which such holders become entitled under Section 1.1. At the Closing, Parent shall deposit (or cause to be deposited) with the Paying Payment Agent, for payment to (i) the holders of shares of Company Common Stock and for Company Series B Preferred Stock, as applicable, the sole benefit of the Company Stockholders pursuant to the provisions of this Article II, an amount of cash equal to the aggregate consideration Merger Consideration to which Company Stockholders are such holders become entitled under this Article II II; and (whichii) to the holders of Company Warrants, for the avoidance of doubt, shall not include the Option Consideration, RSU Warrant Merger Consideration or PSU Consideration) (to which such cash amount being referred to herein as the “Exchange Fund”)holders become entitled under this Article II. Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Payment Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of AmericaAmerica (such cash amount being referred to herein as the “Exchange Fund”). Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g)(at Parent’s election) and for income Tax purposes Parent or the Surviving Corporation, as applicable, shall be treated as having earned any interest and other income resulting from the investment of the Exchange Fund. No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to To the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the amount level required for the Payment Agent to promptly pay in full the cash amounts contemplated by this Article II, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Payment Agent to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective Time.

Exchange Fund. Prior The procedures for exchanging outstanding shares of Company Stock for the consideration to be paid to the Closingholders of such securities in connection with the Merger are as follows: (a) At or prior to the Effective Time, Parent the Buyer shall deposit with a bank or trust company mutually acceptable to the Buyer and the Company (or cause the “Exchange Agent”), for the benefit of the holders of shares of Company Stock outstanding immediately prior to be deposited) with the Paying AgentEffective Time, for payment through the Exchange Agent in accordance with this Section 2.2, cash in an amount sufficient to make payments in exchange for certificates which immediately prior to the Effective Time represented outstanding shares of Company Stock (the “Certificates”) pursuant to Section 2.1(c) (the “Exchange Fund”). (b) Promptly (and in any event within two (2) Business Days) after the Effective Time, the Buyer shall cause the Exchange Agent to mail to each holder of record of a Certificate (i) a letter of transmittal in customary form and (ii) instructions for effecting the surrender of the Certificates in exchange for the sole benefit applicable Merger Consideration payable with respect thereto, provided that the Buyer shall assist the Company in developing arrangements for the delivery of such materials at Closing to significant stockholders of the Company Stockholders to facilitate the payment of Merger Consideration to such stockholders immediately following the Effective Time. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive promptly in exchange therefor the cash that such holder has the right to receive pursuant to the provisions of this Article IIII in respect of all Company Stock held by such holder, an amount and the Certificate so surrendered shall immediately be cancelled. In the event of cash equal a transfer of ownership of Company Stock which is not registered in the transfer records of the Company, the applicable Merger Consideration may be paid to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate is presented to the aggregate consideration Exchange Agent, accompanied by all documents required to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (evidence and effect such cash amount being referred to herein as the “Exchange Fund”)transfer and evidence that any applicable stock transfer taxes have been paid. Until disbursed surrendered as contemplated by this Section 2.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by this Section 2.2. (c) All Merger Consideration paid upon the surrender for exchange of Certificates evidencing shares of Company Stock in accordance with the terms and conditions of this Agreement, such funds hereof shall be invested by deemed to have been paid in satisfaction of all rights pertaining to such shares of Company Stock, and from and after the Paying Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments Effective Time there shall be paid to Parent or no further registration of transfers on the stock transfer books of the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect of the consideration to which holders shares of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article II, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of Stock which were outstanding immediately prior to the Effective Time; provided that. If, unless otherwise agreed by Parent and after the Company prior Effective Time, Certificates are presented to the ClosingSurviving Corporation or the Exchange Agent for any reason, any such investments they shall be cancelled and exchanged as provided in obligations of, or guaranteed by, this Article II. (d) Any portion of the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue Exchange Fund which remains undistributed to the benefit of holders of Company Shares as of immediately prior Stock for two years after the Effective Time shall be delivered to the Effective TimeBuyer (subject to abandoned property, escheat or similar law), upon demand, and any holder of Company Stock who has not previously complied with this Section 2.2 shall be entitled to receive only from the Buyer (subject to abandoned property, escheat or similar law) payment of its claim for Merger Consideration in connection with the Merger, without interest. (e) To the extent permitted by applicable law, none of the Buyer, the Transitory Subsidiary, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. (f) Each of the Buyer and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Stock, Company Stock Options and Company Warrants such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation or the Buyer, as the case may be, such withheld amounts (i) shall be remitted by the Buyer or the Surviving Corporation, as the case may be, to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to such holder of the shares of Company Stock, Company Stock Options and Company Warrants in respect of which such deduction and withholding was made by the Surviving Corporation or the Buyer, as the case may be. (g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof pursuant to this Agreement.

Exchange Fund. Prior At or before the Effective Time, Parent or Merger Sub shall deposit in immediately available funds with the exchange agent for the Company Preferred Stock and the Company Common Stock selected by Parent and reasonably acceptable to the Closing, Parent shall deposit Company (or cause to be depositedthe "Exchange Agent") with the Paying Agent, for payment to and for the sole benefit of the Company Stockholders pursuant to the provisions of this Article II, an amount of cash equal to the aggregate consideration to which sum of (i) the product of (A) the number of shares of Company Stockholders are entitled under this Article II Common Stock issued and outstanding at the Effective Time (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount being referred to herein as the “Exchange Fund”). Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested reduced by the Paying Agentsum of the number of shares owned by Parent, as directed by Merger Sub, any other wholly owned subsidiary of Parent or Merger Sub or the Surviving Corporation, in obligations Company) and (B) the Common Price; (ii) the product of or guaranteed (A) the number of shares of Company Preferred Stock issued and outstanding at the Effective Time (reduced by the United States number of America or obligations shares owned by Parent, Merger Sub, any other wholly owned subsidiary of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or Merger Sub or the Surviving Corporation Company) and (B) the Preferred Price; and (iii) the aggregate amount payable to holders of Company Stock Options in accordance with Section 2.8(g2.3 hereof (such amount being hereinafter referred to as the "Exchange Fund"). No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments Out of the Exchange Fund, or the Exchange Agent shall, and Parent shall cause the Exchange Agent to, pursuant to irrevocable instructions, make the payments referred to in Section 1.8 hereof; this Section 2.1 and Section 2.3. The Exchange Agent may invest portions of the Exchange Fund diminishes as Parent directs. Any net profit resulting from, or interest or income produced by, such investments shall be payable to Parent. Parent shall replace any monies lost through any investment made pursuant to this Section 2.1 and if the money deposited is insufficient for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article IIother reason, Parent shall, or shall cause deposit monies to make the Surviving Corporation to, promptly replace or restore the cash required payments. Any amount remaining in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to after one year after the Effective TimeTime may be refunded to Parent at its option; provided thatprovided, unless otherwise agreed however, that Parent shall thereafter be liable for the cash payments required by Parent Sections 1.8(a), 1.8(b) and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole 2.3 hereof and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective Timethis Section 2.1.

Exchange Fund. (a) Prior to the ClosingEffective Time, Parent shall deposit appoint a commercial bank or trust company which shall be reasonably acceptable to the Special Committee to act as paying agent (the “Paying Agent”) hereunder for the purpose of effecting payment of the Per Share Merger Consideration or the Per ADS Merger Consideration, as applicable, upon the cancellation of the Shares (including the Shares represented by ADSs). (b) At or prior to the Effective Time, Parent shall deposit, or cause to be deposited) , with the Paying Agent, for payment to and for the sole benefit of the Company Stockholders pursuant to holders of the provisions of this Article IIShares and the ADSs, an amount in cash in immediately available funds sufficient to pay the aggregate Per Share Merger Consideration and aggregate Per ADS Merger Consideration payable under Section 3.01(b) and Section 3.01(e) (and in case of cash payments under Section 3.01(e), an amount equal to the aggregate consideration number of Dissenting Shares multiplied by the Per Share Merger Consideration). Any cash deposited with the Paying Agent pursuant to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, Section 3.02(b) shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount being hereinafter be referred to herein as the “Exchange Fund”). Until disbursed .” Any amounts in accordance with the terms Exchange Fund in excess of the aggregate amounts payable under Section 3.01(b) and conditions of this Agreement, such funds Section 3.01(e) shall be invested by the Paying Agent, as directed by Parent or returned to the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation Company in accordance with Section 2.8(g)3.06. No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes If for any reason below following the amount required to promptly pay in full the cash amounts contemplated by this Article II, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore Effective Time the cash in the Exchange Fund so is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (including as a result of any investment losses), Parent or the Surviving Company shall promptly deposit or cause to ensure that be deposited cash in immediately available funds into the Exchange Fund in an amount which is at all times maintained at a level sufficient equal to make the deficiency in full the amount of cash required to fully satisfy such payments cash payment obligations. Except as contemplated by this Article II. The Section 3.08, the Exchange Fund shall not be used for any purpose other than as expressly provided specified in this AgreementSection 3.02. The Exchange Fund Parent or the Surviving Company shall be invested by pay all charges and expenses, including those of the Paying Agent as directed Agent, incurred by Parent or Merger Sub, it in its sole discretion, pending payment thereof by connection with the Paying Agent exchange of Shares pursuant to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective Timethis Article III.

Exchange Fund. Prior to At or as promptly as practicable following the ClosingEffective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for Depository Agent cash sufficient to make payment to and for the sole benefit of the Company Stockholders pursuant to the provisions of this Article II, an amount of Section 2.1(e) and with the Paying Agent cash equal sufficient to make payment to the aggregate consideration to which Company Stockholders are entitled under this Article II pursuant to the provisions of Section 3.7(a)(i) (which, for the avoidance of doubt, shall not include the Option Consideration, RSU the Performance-Based Restricted Share Award Consideration or PSU and the Time-Based Restricted Share Award Consideration, payment for which shall be made pursuant to Section 3.7(f)) (collectively, such cash amount being referred to herein as deposits with the Depository Agent and with the Paying Agent, the “Exchange Fund”). Until disbursed in accordance with the terms and conditions of this Agreement, such funds in the Exchange Fund shall be invested by the Paying Agent, as reasonably directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of AmericaXxxxxx. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g)3.8(g) and Parent or the Surviving Corporation shall be responsible for any income taxes on such interest and other income. No investment or losses thereon shall affect the consideration to which holders of Company Shares Stockholders are entitled under this Article II III and to the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article IIIII, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by this Article IIIII. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective Time.

Exchange Fund. Prior to the ClosingEffective Time, Parent shall deposit designate a bank or trust company reasonably acceptable to the Company to act as the exchange agent in connection with the Merger (the "Exchange Agent"). The Exchange Agent shall also act as the agent for the Company's stockholders for the purpose of receiving and holding their certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Certificates") and non-certificated shares of Company Common Stock represented by book-entry ("Book-Entry Shares") and shall obtain no rights or interests in the shares represented thereby. At or immediately after the Effective Time, Parent shall deposit, or cause to be deposited) , with the Paying Agent, for payment Exchange Agent cash in immediately available funds in an amount sufficient to and pay the aggregate Merger Consideration (the "Exchange Fund") for the sole benefit of the holders of shares of Company Stockholders pursuant Common Stock. In the event the Exchange Fund shall be insufficient to pay the provisions of this Article IIaggregate Merger Consideration, Parent shall promptly deposit, or cause to be promptly deposited, additional funds with the Exchange Agent in an amount of cash which is equal to the aggregate consideration to which Company Stockholders are entitled under this Article II (which, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount being referred to herein as the “Exchange Fund”). Until disbursed deficiency in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fund, or the Exchange Fund diminishes for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article II, make such payment. Parent shall, or shall cause the Surviving Corporation toExchange Agent to make, promptly replace or restore and the cash in Exchange Agent shall make, delivery of the Merger Consideration out of the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by accordance with this Article IIAgreement. The Exchange Fund shall not be used for any purpose other than as that is not expressly provided for in this Agreement. The Exchange Fund shall be invested by the Paying Exchange Agent as reasonably directed by Parent Parent; provided, however, that no such investment or Merger Subloss thereon shall affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article II, in its sole discretionand, pending payment thereof by the Paying Agent to the holders extent of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments loss, Parent shall fund additional cash amounts into the Exchange Fund to enable such payments to be in obligations of, made. Any interest or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly available). Earnings other income from such investments shall be the sole and exclusive property of payable to Parent or Merger Subthe Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective TimeParent directs.

Exchange Fund. Prior Within ten (10) Business Days after the date of this Agreement, Acquiror shall appoint a financial institution or other appropriate entity selected by Acquiror to act as exchange agent for the Merger (in such capacity, the “Exchange Agent”). At or prior to the ClosingEffective Time, Parent Acquiror shall deposit (deposit, or shall cause to be deposited) , with the Paying Agent, for payment to and such Exchange Agent for the sole benefit of the holders of certificates representing Company Stockholders pursuant Common Shares (“Old Certificates”) and the holders of In the Money Options and Warrants that remain outstanding immediately prior to the provisions of Effective Time, for exchange and payment in accordance with this Article II, an amount of cash equal to certificates representing the aggregate consideration to which Company Stockholders are entitled under this Article II Total Stock Consideration (which, for “New Certificates”) and the avoidance of doubt, shall not include the Option Consideration, RSU Total Cash Consideration or PSU Consideration) (such cash amount and New Certificates, together with any dividends or distributions with respect thereto with a record date occurring on or after the Effective Time, and any amounts delivered by the Company to the Exchange Agent pursuant to Section 5.23 being hereinafter collectively referred to herein as the “Exchange Fund”). Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall ) to be paid pursuant to Parent or the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fundin exchange for outstanding Company Common Shares, or the Exchange Fund diminishes for any reason below the amount required to promptly pay in full the cash amounts contemplated by this Article II, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of In the Company Shares as Money Options that remain unexercised, vested and outstanding immediately prior to the Effective Time and to the holders of Warrants that remain outstanding immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, . The Exchange Agent shall have no liability for any such investments shall be in obligations ofactions taken, or guaranteed byfailures to act, with respect to this Agreement in the United States government absence of gross negligence or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based intentional misconduct on the most recent financial statements of such bank that are then publicly available). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue the Exchange Agent. The Exchange Fund represents the total consideration to the benefit of be paid to all holders of Company Common Shares, Options and Warrants pursuant to this Agreement and neither the Company, Acquiror nor the Exchange Agent shall be required to pay any additional amounts to such holders of Company Common Shares, Options or Warrants pursuant to this Agreement (other than any additional amounts required due to rounding pursuant to Section 2.5(a), cash paid in lieu of fractional shares pursuant to Section 2.5(b) and any amounts required to be paid to holders of Dissenting Shares as in excess of immediately prior the amounts allocated pursuant to the Effective TimeSection 2.6).

Exchange Fund. Prior to At the ClosingEffective Time, Parent shall deposit (deposit, or shall cause to be deposited, with a U.S. bank or trust company that shall be appointed by Parent (and reasonably satisfactory to the Company) with to act as a paying agent hereunder (the “Paying Agent”), for payment to and in trust for the sole benefit of holders of the Company Stockholders Shares, cash in U.S. dollars in an amount equal to the product of (i) the Merger Consideration multiplied by (ii) the number of Shares issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares and the Dissenting Shares) (such cash being hereinafter referred to as the “Exchange Fund”), payable upon due surrender of the certificates that, immediately prior to the Effective Time, represented Shares (“Certificates”) (or affidavits of loss in lieu thereof) or non-certificated Shares represented by book-entry (“Book-Entry Shares”) pursuant to the provisions of this Article II. In the event any Dissenting Shares cease to be Dissenting Shares, an amount of cash equal Parent shall deposit, or cause to the aggregate consideration to which Company Stockholders are entitled under this Article II (whichbe deposited, for the avoidance of doubt, shall not include the Option Consideration, RSU Consideration or PSU Consideration) (such cash amount being referred to herein as the “Exchange Fund”). Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, Agent in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g). No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to the extent that there are any losses with respect to any investments of the Exchange Fund, or an amount equal to the product of (x) the Merger Consideration multiplied by (y) the number of such formerly Dissenting Shares. In the event the Exchange Fund diminishes for any reason below shall be insufficient to make the amount required to promptly pay in full the cash amounts payments contemplated by this Article IISection 2.1, Parent shall, or shall cause Merger Sub or the Surviving Corporation to, promptly replace or restore deposit additional funds with the cash Paying Agent in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level an amount sufficient to make in full such payments contemplated by this Article IIpayments. The Exchange Fund shall not be used for any purpose other than as that is not expressly provided for in this Agreement. The Paying Agent may invest the Exchange Fund shall be invested by the Paying Agent only as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to the Effective TimeParent; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any that such investments investment shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereofof America, in commercial paper obligations of issuers organized under the Law of a state of the United States of America, rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s CorporationRatings Service, respectively, or in certificates of deposit, bank repurchase agreements or banker’s bankers’ acceptances of commercial banks with capital exceeding $5.0 billion 5 billion, or in mutual funds investing solely in such assets and, in any such case, no such instrument shall have a maturity exceeding three (based on 3) months. Any such investment shall be for the most recent financial statements benefit, and at the risk, of such bank that are then publicly available). Earnings Parent, and any interest or other income resulting from such investments investment shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to for the benefit of Parent; provided that no such investment or losses thereon shall affect the Merger Consideration payable hereunder and Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds to the Paying Agent for the benefit of the holders of Company Shares as of Common Stock immediately prior to the Effective TimeTime in the amount of any such losses to the extent necessary to satisfy the obligations of Parent and the Surviving Corporation under this Article II.

Exchange Fund. Prior to At the ClosingEffective Time, Parent shall deposit (or cause to be deposited) with the Paying Payment Agent, for payment to and for the sole benefit holders of the shares of Company Stockholders Common Stock pursuant to the provisions of this Article III, an amount of cash equal to the aggregate consideration to which holders of Company Stockholders are Common Stock become entitled under this Article II I (whichbut not, for the avoidance of doubt, payments with respect to Dissenting Shares or payments to which holders of Company RSU Awards and holders of Company Options become entitled, which Parent shall not include pay, or cause to be paid, in accordance with Section 1.7(d)). From time to time after the Option ConsiderationEffective Time, RSU Consideration if any Dissenting Shares lose their status as Dissenting Shares, and are converted into the right to receive the Per Share Price in accordance with Section 1.7(c)(ii), Parent shall deposit (or PSU Considerationcause to be deposited) with the Payment Agent additional funds equal to the product of (x) the number of such cash amount being referred to herein as former Dissenting Shares multiplied by (y) the “Exchange Fund”Per Share Price (less any applicable withholding Tax). Until disbursed in accordance with the terms and conditions of this Agreement, such funds cash shall be invested by the Paying Agent, Payment Agent (such cash being referred to herein as the “Exchange Fund”) as directed by Parent or the Surviving Corporation, Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America America, in commercial paper obligations rated A-1 or obligations P1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of an deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5 billion (based on the most recent financial statements of such bank that are then publicly available), or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of investment. Any income from investment of the United States of America Exchange Fund, which are backed by the full faith and credit of the United States of America. Any interest and other income resulting from such investments shall be paid to Parent or the Surviving Corporation in accordance with Section 2.8(g)the terms of this Agreement, will be payable to the Surviving Corporation. No investment or losses thereon shall affect the consideration to which holders of Company Shares are entitled under this Article II and to To the extent that there are any losses with respect to any investments of the Exchange Fundsuch investments, or the Exchange Fund diminishes for any reason below the amount level required for the Payment Agent to promptly pay in full the make prompt cash amounts contemplated by this Article IIpayment under Section 1.7(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Payment Agent to make in full such payments contemplated by this Article II. The Exchange Fund shall not be used for any purpose other than as expressly provided in this Agreement. The Exchange Fund shall be invested by the Paying Agent as directed by Parent or Merger Sub, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Company Shares as of immediately prior to the Effective Time; provided that, unless otherwise agreed by Parent and the Company prior to the Closing, any such investments shall be in obligations of, or guaranteed by, the United States government or any agency or instrumentality thereof, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5.0 billion (based on the most recent financial statements of such bank that are then publicly availableunder Section 1.7(a). Earnings from such investments shall be the sole and exclusive property of Parent or Merger Sub, and no part of such earnings shall accrue to the benefit of holders of Company Shares as of immediately prior to the Effective Time.