Common use of Expense Cash Clause in Contracts

Expense Cash. (a) The Expense Cash shall be deposited with the Securityholder Representative, to constitute an expense fund (the “Expense Fund”) and to be governed by the provisions set forth herein. The Expense Cash shall be available to reimburse the Securityholder Representative for any Securityholder Representative Expenses reasonably and actually incurred by the Securityholder Representative, or to satisfy any claims against the Indemnifying Parties hereunder if the Securityholder Representative shall determine there are sufficient funds for such purpose, and shall be released to the Indemnifying Parties and the Securityholder Representative, as the case may be, pursuant to the terms of this Section 10.3. As soon as reasonably determined by the Securityholder Representative that the Expense Cash is no longer required to be withheld, the Securityholder Representative shall deposit the remaining balance of the Expense Cash (if any) (the “Remaining Expense Fund Amount”) with the Payment Agent for further distribution to the Indemnifying Parties in accordance with their respective Pro Rata Portion of the Remaining Expense Fund Amount; provided, that, if there are any pending but unresolved indemnification claims of any Indemnified Parties, then all amounts shall remain in escrow and remain available for release to the Securityholder Representative until all indemnification claims have been finally resolved and the Securityholder Representative has been reimbursed in full for all Securityholder Representative Expenses reasonably and actually incurred and thereafter any remaining Expense Cash shall be released to the respective Indemnifying Parties (by the Surviving Corporation or the Payment Agent, as applicable) in proportion to their respective Pro Rata Portions. In the event such Securityholder Representative Expenses exceed the remaining amount in the Expense Fund, the Securityholder Representative shall be entitled to recover such Securityholder Representative Expenses: (i) following the expiration of each Escrow Period from the Indemnity Escrow Amounts otherwise distributable to or for the benefit of the Indemnifying Parties only at the time of distribution of such amounts (and not distributed or distributable to an Indemnified Party or subject to a pending indemnification claim of an Indemnified Party) pursuant to the terms hereof and of the Escrow Agreement, and such recovery will be made from the Indemnifying Parties according to their respective Pro Rata Portions, or (ii) directly from the Indemnifying Parties according to their Pro Rata Portions. The Indemnifying Parties agree that no provision of this Agreement or the Escrow Agreement shall require the Securityholder Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement or the Escrow Agreement. For clarity, no Indemnified Party shall have any liability with respect to the Expense Cash, including with respect to the distribution, investment, holding and disposition thereof. (b) The Securityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability to the Indemnifying Parties for any loss of principal of the Expense Cash other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Cash, and has no tax reporting or income distribution obligations. The Indemnifying Parties will not receive any interest on the Expense Cash and assign to the Securityholder Representative any such interest. The Securityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Parties. (c) For income Tax purposes, the Expense Cash shall be treated as having been received and voluntarily set aside by the Indemnifying Parties on the Closing Date, and any Tax withholding required with respect to a Indemnifying Party’s deemed receipt of its Pro Rata Portion of the Expense Cash on the Closing Date shall be satisfied from any amounts payable or otherwise deliverable pursuant to this Agreement to such Indemnifying Party, consistent with Section 2.5.

Expense Cash. (a) The At the Closing, the Expense Cash shall be deposited by Buyer with the Securityholder RepresentativeRepresentative pursuant to Section 2.3(b)(v) hereof, to constitute an expense fund (the “Expense Fund”) and to be governed by the provisions set forth herein. The Expense Cash shall be available to pay directly or reimburse the Securityholder Representative for any Securityholder Representative Expenses reasonably and or other third-party expenses actually incurred by the Securityholder Representative, or to satisfy any claims against the Indemnifying Parties hereunder if the Securityholder Representative shall determine there are sufficient funds for such purpose, and shall be released to the Indemnifying Parties and the Securityholder Representative, as the case may be, pursuant to the terms of this Section 10.3. As soon as reasonably determined by the Securityholder Representative that the Expense Cash is no longer required to be withheld, the Securityholder Representative shall: (i) prepare an updated version of the Closing Payment Spreadsheet (the “Expense Cash Release Payment Spreadsheet”). The Expense Cash Release Payment Spreadsheet shall set forth the following information in reasonable detail: (A) all information specified in Sections 2.3(a)(i)-(vi) inclusive, as updated to reflect the release of the Remaining Expense Fund Amount; and (B) the amount of any portion of the Remaining Expense Fund Amount, payable to each Indemnifying Party in accordance with such Indemnifying Party’s Indemnification Pro Rata Portion, (ii) deposit the remaining balance of the Expense Cash (if any) (the “Remaining Expense Fund Amount”) with the Payment Agent for further distribution to the Indemnifying Parties in accordance with their the Expense Cash Release Payment Spreadsheet, with each Indemnifying Party receiving its respective Indemnification Pro Rata Portion of the Remaining Expense Fund Amount; provided, that, if there are any pending but unresolved indemnification claims of any Indemnified Parties, then all amounts shall remain in escrow and remain available for release to the Securityholder Representative until all indemnification claims have been finally resolved and the Securityholder Representative has been reimbursed in full for all Securityholder Representative Expenses reasonably and actually incurred and thereafter any remaining Expense Cash shall be released to the respective Indemnifying Parties (by the Surviving Corporation or the Payment Agent, as applicable) in proportion to their accordance with the Expense Cash Release Payment Spreadsheet, with each Indemnifying Party receiving its respective Indemnification Pro Rata Portions. In the event such Securityholder Representative Expenses exceed the remaining amount in the Expense Fund, the Securityholder Representative shall be entitled to recover such Securityholder Representative Expenses: (i) following the expiration of each Escrow Period from the Indemnity Escrow Amounts otherwise distributable to or for the benefit of the Indemnifying Parties only at the time of distribution Portion of such amounts remaining Expense Cash. (and not distributed or distributable to an Indemnified Party or subject to a pending indemnification claim of an Indemnified Partyb) pursuant to the terms hereof and of the Escrow Agreement, and such recovery will be made from the Indemnifying Parties according to their respective Pro Rata Portions, or (ii) directly from the Indemnifying Parties according to their Pro Rata Portions. The Indemnifying Parties agree that no provision of this Agreement or Agreement, the Escrow Agreement or any agreements ancillary hereto shall require the Securityholder Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or the Escrow Agreementany agreements ancillary hereto. For clarity, no Indemnified Party shall have any liability with respect to the Expense Cash, including with respect to the distribution, investment, holding and disposition thereof. (bc) The Securityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability to the Indemnifying Parties for any loss of principal of the Expense Cash other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Cash, and has no tax reporting or income distribution obligations. The Indemnifying Parties will not receive any interest or earnings on the Expense Cash and irrevocably transfer and assign to the Securityholder Representative any such interestinterest or earnings. The Securityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Parties. (c) . For income Tax purposes, the Expense Cash shall be treated as having been received and voluntarily set aside by the Indemnifying Parties on the Closing Date, and any Tax withholding required with respect to a an Indemnifying Party’s deemed receipt of its Indemnification Pro Rata Portion of the Expense Cash on the Closing Date shall be satisfied from any amounts payable or otherwise deliverable pursuant to this Agreement to such Indemnifying Party, consistent with Section 2.5.

Expense Cash. (ai) The Expense Cash shall be deposited with the Securityholder Stockholders’ Representative, to constitute an expense fund (the “Expense Fund”) and to be governed by the provisions set forth herein. The Expense Cash shall be available to reimburse the Securityholder Stockholders’ Representative for any Securityholder Stockholders’ Representative Expenses reasonably and actually incurred by the Securityholder Stockholders’ Representative, or to satisfy any claims against the Indemnifying Parties Company Indemnitors hereunder if the Securityholder Stockholders’ Representative shall determine there are sufficient funds for such purpose, and shall be released to the Indemnifying Parties Company Indemnitors and the Securityholder Stockholders’ Representative, as the case may be, pursuant to the terms of this Section 10.39.1. As soon as reasonably determined by the Securityholder Stockholders’ Representative that the Expense Cash is no longer required to be withheld, the Securityholder Stockholders’ Representative shall deposit the remaining balance of the Expense Cash (if any) (the “Remaining Expense Fund Amount”) with the Payment Agent for further distribution to the Indemnifying Parties Company Stockholders for the portion payable in accordance with their respective Pro Rata Portion respect of the Remaining Expense Fund AmountCompany Capital Stock; provided, that, if there are any pending but unresolved indemnification claims of any Indemnified Parties, then all amounts shall remain in escrow and remain available for release to the Securityholder Stockholders’ Representative until all indemnification claims have been finally resolved and the Securityholder Stockholders’ Representative has been reimbursed in full for all Securityholder Stockholders’ Representative Expenses reasonably and actually incurred and thereafter any remaining Expense Cash shall be released to the respective Indemnifying Parties Company Indemnitors (by the Surviving Corporation or the Payment Agent, as applicable) in proportion to their respective Pro Rata Portions. In the event such Securityholder Stockholders’ Representative Expenses exceed the remaining amount in the of Expense FundCash, the Securityholder Stockholders’ Representative shall be entitled to recover such Securityholder Representative Expenses: (i) expenses following the expiration of each Escrow Period from the Indemnity Escrow Amounts otherwise distributable to or for the benefit of the Indemnifying Parties Company Indemnitors only at the time of distribution of such amounts (and not distributed or distributable to an Indemnified Party or subject to a pending indemnification claim of an Indemnified Party) pursuant to the terms hereof and of the Escrow Agreement, and such recovery will be made from the Indemnifying Parties Company Indemnitors according to their respective Pro Rata Portions, or (ii) directly from the Indemnifying Parties according to their Pro Rata Portions. The Indemnifying Parties agree that no No provision of this Agreement or the Escrow Agreement shall require the Securityholder Stockholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement or the Escrow Agreement. For clarity, no Indemnified Party shall have any liability with respect to the Expense Cash, including with respect to the distribution, investment, holding and disposition thereof. (bii) The Securityholder Stockholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability to the Indemnifying Parties for any loss of principal of the Expense Cash other than as a result of its gross negligence or willful misconduct. The Securityholder Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Cash, and has no tax reporting or income distribution obligations. The Indemnifying Parties Company Indemnitors will not receive any interest on the Expense Cash and assign to the Securityholder Stockholders’ Representative any such interest. The Securityholder Stockholders’ Representative may contribute funds to the Expense Fund Cash from any consideration otherwise distributable to the Indemnifying PartiesCompany Indemnitors. (ciii) For income Tax purposes, the Expense Cash shall be treated as having been received and voluntarily set aside by the Indemnifying Parties Company Indemnitors on the Closing Date, and any Tax withholding required with respect to a Indemnifying PartyCompany Indemnitor’s deemed receipt of its Pro Rata Portion of the Expense Cash on the Closing Date shall be satisfied from any amounts payable or otherwise deliverable such Company Indemnitor’s share of Total Merger Consideration received at Closing pursuant to this Agreement to such Indemnifying Party, consistent with Section 2.52.3(b)(i).

Expense Cash. (ai) The Expense Cash shall be deposited with the Securityholder Stockholders’ Representative, to constitute an expense fund (the “Expense Fund”) and to be governed by the provisions set forth herein. The Expense Cash shall be available to reimburse the Securityholder Stockholders’ Representative for any Securityholder Representative Expenses Losses reasonably and actually incurred by the Securityholder Stockholders’ Representative, or to satisfy any claims against the Indemnifying Parties hereunder if the Securityholder Representative shall determine there are sufficient funds for such purpose, and shall be released to the Indemnifying Parties and the Securityholder Representative, as the case may be, pursuant to the terms of this Section 10.3. As soon as reasonably determined by the Securityholder Stockholders’ Representative that the Expense Cash is no longer required to be withheld, the Securityholder Stockholders’ Representative shall deposit the remaining balance of the Expense Cash (if any) (the “Remaining Expense Fund Amount”) with the Surviving Corporation or the Payment Agent Agent, as applicable, for further distribution to the Indemnifying Parties Company Indemnitors in accordance with proportion to their respective Pro Rata Portion of the Remaining Expense Fund AmountPortions; provided, that, if there are any pending but unresolved indemnification claims of any Indemnified Parties, then all amounts shall remain in escrow and remain available for release to the Securityholder Stockholders’ Representative until all indemnification claims have been finally resolved and the Securityholder Stockholders’ Representative has been reimbursed in full for all Securityholder Representative Expenses Losses reasonably and actually incurred and thereafter any remaining Expense Cash shall be released to the respective Indemnifying Parties Company Indemnitors (by the Surviving Corporation or the Payment Agent, as applicable) in proportion to their respective Pro Rata Portions. In the event such Securityholder Representative Expenses Losses exceed the remaining amount in the of Expense FundCash, the Securityholder Stockholders’ Representative shall be entitled to recover such Securityholder Representative Expenses: (i) expenses following the expiration of each the Indemnity Escrow Period from the Indemnity Escrow Amounts otherwise distributable to or for the benefit of the Indemnifying Parties Company Indemnitors only at the time of distribution of such amounts (and not distributed or distributable to an Indemnified Party or subject to a pending indemnification claim of an Indemnified Party) pursuant to the terms hereof and of the Escrow Agreementhereof, and such recovery will be made from the Indemnifying Parties Company Indemnitors according to their respective Pro Rata Portions, or (ii) directly from the Indemnifying Parties according to their Pro Rata Portions. The Indemnifying Parties agree that no No provision of this Agreement or the Escrow Agreement shall require the Securityholder Stockholders’ Representative to expend or risk its own funds or otherwise incur any financial liability Liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement or the Escrow Agreement. For clarity, no Indemnified Party shall have any liability Liability with respect to the Expense Cash, including with respect to the distribution, investment, holding and disposition thereof. (bii) The Securityholder Stockholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability to the Indemnifying Parties Liability for any loss of principal of the Expense Cash other than as a result of its gross negligence or willful misconduct. The Securityholder Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Cash, and has no tax reporting or income distribution obligations. The Indemnifying Parties Company Indemnitors will not receive any interest or earnings on the Expense Cash and irrevocably transfer and assign to the Securityholder Stockholders’ Representative any ownership right that they may otherwise have had in any such interestinterest or earnings. The Securityholder Stockholders’ Representative may contribute funds to the Expense Fund Cash from any consideration otherwise distributable to the Indemnifying PartiesCompany Indemnitors. (ciii) For income Tax purposes, the Expense Cash shall be treated as having been received and voluntarily set aside by the Indemnifying Parties Company Indemnitors on the Closing Date, and any Tax withholding required with respect to a Indemnifying PartyCompany Indemnitor’s deemed receipt of its Pro Rata Portion of the Expense Cash on the Closing Date shall be satisfied from any amounts payable or otherwise deliverable such Company Indemnitor’s share of Total Merger Consideration received at Closing pursuant to this Agreement to such Indemnifying Party, consistent with Section 2.52.3(b)(i).

Expense Cash. (a) The Expense Cash shall be deposited with the Securityholder Shareholders’ Representative, to constitute an expense fund (the “Expense Fund”) and to be governed by the provisions set forth herein. The Expense Cash shall be available used (i) to reimburse the Securityholder Shareholders’ Representative for any Securityholder Shareholders’ Representative Expenses reasonably and actually incurred by the Securityholder Shareholders’ Representative, or to satisfy any claims against the Indemnifying Parties Working Capital Escrow or Company Indemnitors hereunder if the Securityholder Shareholders’ Representative shall determine there are sufficient funds for such purpose, or (ii) as otherwise directed by the Advisory Group, and shall be released to the Indemnifying Parties Participating Sellers and the Securityholder Shareholders’ Representative, as the case may be, pursuant to the terms of this Section 10.39.1. As soon as reasonably determined by the Securityholder Shareholders’ Representative that the Expense Cash is no longer required to be withheld, the Securityholder Shareholders’ Representative shall deposit the remaining balance of the Expense Cash (if any) (the “Remaining Expense Fund Amount”) with the Payment Agent for further distribution to the Indemnifying Parties Participating Sellers in accordance with proportion to their respective Working Capital Pro Rata Portion of the Remaining Expense Fund AmountPortions; provided, that, if there are any pending but unresolved indemnification claims of any Indemnified Parties, then all amounts shall remain in escrow and remain available for release to the Securityholder Shareholders’ Representative until all indemnification claims have been finally resolved and the Securityholder Shareholders’ Representative has been reimbursed in full for all Securityholder Shareholders’ Representative Expenses reasonably and actually incurred and thereafter any remaining Expense Cash shall be released to the respective Indemnifying Parties Participating Sellers (by the Surviving Corporation Company or the Payment Agent, as applicable) in proportion to their respective Working Capital Pro Rata Portions. In the event such Securityholder Shareholders’ Representative Expenses exceed the remaining amount in the of Expense FundCash, the Securityholder Shareholders’ Representative shall be entitled to recover such Securityholder Representative Expenses: (i) expenses following the expiration of each Escrow Period from the Indemnity Escrow Amounts otherwise distributable to or for the benefit of the Indemnifying Parties Participating Sellers or Company Indemnitors, as applicable, only at the time of distribution of such amounts (and not distributed or distributable to an Indemnified Party or subject to a pending indemnification claim of an Indemnified Party) pursuant to the terms hereof and of the Escrow Agreement, or directly from the Participating Sellers and Company Indemnitors if the Escrow Amounts are insufficient to reimburse the Shareholders’ Representative for such Shareholders’ Representative Expenses, and such recovery will be made from the Indemnifying Parties Participating Sellers or Company Indemnitors, applicable, according to their respective Pro Rata Portions, or (ii) directly from the Indemnifying Parties according to their Pro Rata Portions. The Indemnifying Parties agree that no No provision of this Agreement or the Escrow Agreement shall require the Securityholder Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreements, the Shareholders’ Representative Engagement Agreement or the Escrow Agreementtransactions contemplated hereby or thereby. Furthermore, the Shareholders’ Representative shall not be required to take any action unless the Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and liabilities which may be incurred by the Shareholders’ Representative in performing such actions. For clarity, no Indemnified Party shall have any liability with respect to the Expense Cash, including with respect to the distribution, investment, holding and disposition thereof. (bi) The Securityholder Shareholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability to the Indemnifying Parties for any loss of principal of the Expense Cash other than as a result of its gross negligence or willful misconduct. The Securityholder Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Cash, and has no tax reporting or income distribution obligations. The Indemnifying Parties Participating Sellers will not receive any interest on the Expense Cash and assign to the Securityholder Shareholders’ Representative any such interest. The Securityholder Subject to Advisory Group approval, the Shareholders’ Representative may contribute funds to the Expense Fund Cash from any consideration otherwise distributable to the Indemnifying PartiesParticipating Sellers. (cii) For income Tax purposes, the Expense Cash shall be treated as having been received and voluntarily set aside by the Indemnifying Parties Participating Sellers on the Closing Date, and any Tax withholding required with respect to a Indemnifying PartyParticipating Seller’s deemed receipt of its Working Capital Pro Rata Portion of the Expense Cash on the Closing Date shall be satisfied from any amounts payable or otherwise deliverable such Participating Seller’s share of Total Acquisition Consideration received at Closing pursuant to this Agreement to such Indemnifying Party, consistent with Section 2.52.3(b)(i).