Common use of Expense Fund Clause in Contracts

Expense Fund. The Expense Amount shall be used by the Equityholders’ Representative for the purposes of paying directly, or reimbursing the Equityholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto (including the Escrow Agreement). The Equityholders’ Representative shall be entitled to any interest, dividends, earnings or other income received in respect of the Expense Amount (or any remaining portion thereof), and such interest, dividends, earnings or other income shall be treated as income earned by the Equityholders’ Representative for Tax purposes. No Equityholder shall be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect of the Expense Amount (and, to the fullest extent permitted by applicable Law, each Equityholder shall be deemed to have irrevocably transferred and assigned to the Equityholders’ Representative any ownership right that such Equityholder otherwise may now have or may in the future have in any such interest, dividends, earnings or other income). The Equityholders’ Representative shall not be liable for any loss of principal of the Expense Amount other than as a result of its gross negligence, fraud or willful misconduct. The Equityholders’ Representative shall hold the Expense Amount (or any remaining portion thereof) separate from its corporate funds, shall not use the Expense Amount (or any remaining portion thereof) for its operating expenses or any other corporate purposes and shall not voluntarily make the Expense Amount (or any remaining portion thereof) available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Equityholders’ Representative’s responsibilities, the Equityholders’ Representative shall deliver any remaining balance of the Expense Fund to the Payments Administrator (for distribution, in accordance with the Applicable Updated Payout Schedule, to (i) the Stockholders who have duly surrendered their Certificates and delivered duly completed and validly executed Transmittal Letters and (ii) the Optionholders, after giving effect to any required withholding Taxes). The Parties agree that amounts distributed to Stockholders from the Expense Fund will be treated for tax purposes as deferred payments of purchase price, except to the extent treated as payments of interest pursuant to Section 483 or Section 1274 of the Code.

Expense Fund. At the Closing, Parent shall wire to the Securityholders’ Representative the Expense Fund Amount. The Expense Fund Amount shall be used held by the EquityholdersSecurityholders’ Representative in a segregated account (the “Expense Fund”) and shall be used solely for (i) the purposes of paying directly or reimbursing the Securityholders’ Representative for the purposes of any Representative Expenses incurred pursuant to this Agreement or (ii) paying directly, or reimbursing the EquityholdersSecurityholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto (including the Escrow Agreement)Ancillary Agreements. The EquityholdersSecurityholders’ Representative shall be entitled is not providing any investment supervision, recommendations or advice to any interest, dividends, earnings Company Securityholder and shall have no responsibility or other income received in respect of the Expense Amount (or liability to any remaining portion thereof), and such interest, dividends, earnings or other income shall be treated as income earned by the Equityholders’ Representative for Tax purposes. No Equityholder shall be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect of the Expense Amount (and, to the fullest extent permitted by applicable Law, each Equityholder shall be deemed to have irrevocably transferred and assigned to the Equityholders’ Representative any ownership right that such Equityholder otherwise may now have or may in the future have in any such interest, dividends, earnings or other income). The Equityholders’ Representative shall not be liable Company Securityholder for any loss of principal of the Expense Amount Fund other than as a result of its the Securityholders’ Representative’s gross negligence, fraud negligence or willful misconduct. The EquityholdersSecurityholders’ Representative shall will hold the Expense Amount (or any remaining portion thereof) these funds separate from its corporate person funds, shall will not use the Expense Amount (or these funds for any remaining portion thereof) for its operating expenses or any other corporate purposes personal purposes, and shall will not voluntarily make the Expense Amount (or any remaining portion thereof) these funds available to its creditors in the event of bankruptcy. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholders’ Representative any such interest or earnings. As soon as practicable following reasonably determined by the completion of Securityholders’ Representative that the Equityholders’ Representative’s responsibilitiesExpense Fund is no longer required to be withheld, the EquityholdersSecurityholders’ Representative shall deliver distribute any amount remaining balance in the Expense Fund (the “Expense Fund Proceeds”) to Parent and, promptly following Parent’s receipt of the Expense Fund to the Payments Administrator (for distributionProceeds, Parent shall, in accordance with its sole discretion, cause the Applicable Updated Payout Schedule, Exchange Agent to pay to (i) the Stockholders who have duly surrendered each Participating Holder an amount in cash or in Parent Shares, or a combination thereof, equal to their Certificates and delivered duly completed and validly executed Transmittal Letters respective Expense Fund Payment Amount, and (ii) each Non-Participating Holder, an amount in cash equal to such Non-Participating Holder’s Expense Fund Payment Amount (provided, that Parent must grant Parent Common Stock if necessary to preserve the Optionholderstax-free nature of the Mergers under Section 368(a)(1)(A)), after giving effect and provided, further, that Parent may only make payments in Parent Common Stock if, at the time the payment is made, (i) the Parent Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act and (ii) Parent has made all filings it is required to any required withholding Taxesmake under the Exchange Act during the prior twelve months). The Parties agree that amounts distributed to Stockholders from For tax purposes, the Expense Fund will be treated for tax purposes as deferred payments having been received and voluntarily set aside by the Company Securityholders at the time of purchase price, except to the extent treated as payments of interest pursuant to Section 483 or Section 1274 of the CodeClosing.

Expense Fund. Upon the Closing, Parent shall wire the Expense Fund Amount to the Holders’ Representative. The Expense Fund Amount shall be used held by the EquityholdersHolders’ Representative in a segregated client account and shall be used for the purposes of paying directly, directly 88 or reimbursing the EquityholdersHolders’ Representative for, for any third party expenses incurred pursuant to this Agreement and the agreements ancillary hereto (including the Escrow Agreement“Expense Fund”). The EquityholdersHolders’ Representative is not providing any investment supervision, recommendations or advice and shall be entitled to any interest, dividends, earnings have no responsibility or other income received in respect of the Expense Amount (or any remaining portion thereof), and such interest, dividends, earnings or other income shall be treated as income earned by the Equityholders’ Representative for Tax purposes. No Equityholder shall be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect of the Expense Amount (and, to the fullest extent permitted by applicable Law, each Equityholder shall be deemed to have irrevocably transferred and assigned to the Equityholders’ Representative any ownership right that such Equityholder otherwise may now have or may in the future have in any such interest, dividends, earnings or other income). The Equityholders’ Representative shall not be liable liability for any loss of principal of the Expense Amount Fund other than as a result of its gross negligence, fraud negligence or willful misconduct. The Equityholdersparties agree that the Holders’ Representative shall hold is not acting as a withholding agent or in any similar capacity in connection with the Expense Amount (Fund, and has no tax reporting or income distribution obligations. The Holders will not receive any remaining portion thereof) interest or earnings on the Expense Fund and irrevocably transfer and assign to the Holders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Holders’ Representative will hold these funds separate from its corporate funds, shall will not use the Expense Amount (or any remaining portion thereof) these funds for its operating expenses or any other corporate purposes and shall will not voluntarily make the Expense Amount (or any remaining portion thereof) these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the EquityholdersHolders’ Representative’s responsibilities, the EquityholdersHolders’ Representative shall deliver any distribute the remaining balance Expense Fund (if any) to the Holders based on such Holder’s Pro Rata Portion, which shall be calculated with reference to all Holders and Company Optionholders rather than just Consenting Holders, except in the case of payments to employees or former employees of the Expense Fund Company for which employment tax withholding is required, which such amounts shall be delivered to Parent or the Payments Administrator (for distributionSurviving Company and paid through Parent’s or surviving corporation’s payroll processing service or system, in accordance with as directed by the Applicable Updated Payout ScheduleHolders’ Representative advisory committee. For tax purposes, to (i) the Stockholders who have duly surrendered their Certificates and delivered duly completed and validly executed Transmittal Letters and (ii) the Optionholders, after giving effect to any required withholding Taxes). The Parties agree that amounts distributed to Stockholders from the Expense Fund will be treated for tax purposes as deferred payments having been received and voluntarily set aside by the Consenting Holders at the time of purchase price, except to the extent treated as payments of interest pursuant to Section 483 or Section 1274 of the CodeClosing.

Expense Fund. As soon as reasonably practicable (and in any event within one (1) Business Day) following the Closing, Acquiror shall deposit, or cause to be deposited, by wire transfer of immediately available funds, two hundred fifty thousand dollars ($250,000) (the “Expense Fund Amount”) into a segregated account designated by the Securityholder Representative in a written notice delivered to Acquiror at least one (1) Business Day prior to the Closing Date (the “Expense Fund”). The Expense Fund shall be accessed, and the Expense Fund Amount shall be used used, solely by the Equityholders’ Securityholder Representative for the purposes of paying directly(1) to pay any Securityholder Representative Expenses it may incur in performing its duties or exercising its rights under this Agreement, any Related Agreement, or reimbursing the Equityholders’ Securityholder Representative for, any third party expenses pursuant to this Engagement Agreement and (2) as otherwise directed by the agreements ancillary hereto (including the Escrow Agreement)Advisory Group. The Equityholders’ Representative shall be entitled to any interest, dividends, earnings or other income received in respect of the Expense Amount (or any remaining portion thereof), and such interest, dividends, earnings or other income Fund shall be treated as income earned received and deposited by the Equityholders’ Representative Securityholders at Closing for Tax purposes. No Equityholder shall purposes and be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect held as a trust fund for the benefit of the Securityholders and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any Person. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall deliver any amounts then-remaining in the Expense Amount Fund (andsuch amount as may be reduced pursuant to Section 10.2, the “Expense Fund Release Amount”) to the Payment Agent on behalf of the Securityholders, and who will thereafter distribute the Expense Fund Release Amount, as appropriate, to the fullest extent permitted by Securityholders and, with respect to any portion thereof payable to Withholding Securityholders, to the applicable Lawpayroll processor for further distribution to such Withholding Securityholders, in each Equityholder case, in accordance with their respective aggregate Per Share Expense Fund Release Amount. Notwithstanding anything herein to the contrary, the aggregate amount of cash to be distributed at any particular time to any Securityholder in accordance with this Section 2.3(d)(iii) shall be deemed to have irrevocably transferred and assigned rounded down to the Equityholders’ Representative any ownership right that such Equityholder otherwise may now have or may in the future have in any such interest, dividends, earnings or other income)nearest whole cent. The Equityholders’ Securityholder Representative shall is not providing any investment supervision, recommendations or advice and will not be liable to the Securityholders for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud or willful misconduct. The Equityholders’ Securityholder Representative shall hold is not acting as a withholding agent or in any similar capacity in connection with the Expense Amount (Fund Amount, and has no tax reporting or income distribution obligations hereunder. The Securityholders will not receive any interest on the Expense Fund and assign to the Securityholder Representative any such interest. The Securityholder Representative may direct the contribution of funds to the Expense Fund from any consideration otherwise distributable to the Securityholders in accordance with the terms of this Agreement, and, notwithstanding anything herein to the contrary, Acquiror’s obligations to make payment of all or any remaining portion thereof) separate from its corporate funds, shall not use the Expense Amount (or any remaining portion thereof) for its operating expenses or any other corporate purposes and shall not voluntarily make the Expense Amount (or any remaining portion thereof) available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Equityholders’ Representative’s responsibilities, the Equityholders’ Representative shall deliver any remaining balance of the Expense Fund to the Payments Administrator (for distribution, in accordance with the Applicable Updated Payout Schedule, to (i) the Stockholders who have duly surrendered their Certificates and delivered duly completed and validly executed Transmittal Letters and (ii) the Optionholders, after giving effect to any required withholding Taxes). The Parties agree that amounts distributed to Stockholders from Amount shall be fully satisfied upon deposit of the Expense Fund will be treated for tax purposes as deferred payments of purchase price, except to Amount in the extent treated as payments of interest pursuant to Section 483 or Section 1274 of the CodeExpense Fund.

Expense Fund. The By approval of this Agreement pursuant to Delaware law (or otherwise), the Company Holders agree to the establishment of the Stockholder Representative Expense Amount Fund, and further agree that the Stockholder Representative shall be used by have the Equityholders’ right, in its sole discretion, to withdraw from the Stockholder Representative Expense Fund any and all amounts necessary or desirable for the purposes of paying directly, or reimbursing discharging its duties and the Equityholders’ Representative for, duties of the Committee under any third party expenses pursuant to provision of this Agreement and paying or reimbursing its costs and expenses in discharging those duties (the agreements ancillary hereto “Charges”); provided, however, that until the Final Determination of all Scheduled Indemnity Matters and Special Indemnity Claims, the Stockholder Representative may not make any distributions to the Company Holders without the consent of Parent (including the Escrow Agreementwhich will not be unreasonably withheld). The Equityholders’ Representative shall be entitled Such Charges include, without limitation, any and all legal, accounting, consulting, expert and other professional fees and expenses incurred in filing tax returns, obtaining and distributing Tax Refunds, investigating and resolving, whether by litigation, arbitration, mediation, settlement or otherwise, any and all claims, including without limitation Scheduled Indemnity Matters and other Special Indemnity Claims, Third Party Claims and claims by Parent and its Affiliates under this Agreement, any Charges relating to any interest, dividends, earnings or other income received in respect the review of the Expense Amount (or Post-closing Statement and the Adjustment Statement, the determination of Contingent Payments and the collection and distribution of any remaining portion thereof)and all funds to the Company Holders pursuant to the provisions of this Agreement. In the event such amounts are insufficient to satisfy the Charges, then each Company Holder will be obligated to pay of such deficit on a several, and such interestnot joint, dividends, earnings or other income shall be treated as income earned by the Equityholders’ Representative for Tax purposesbasis. No Equityholder shall be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect of the Expense Amount (and, to the fullest extent permitted by applicable Law, each Equityholder shall be deemed to have irrevocably transferred and assigned to the Equityholders’ Representative any ownership right that such Equityholder otherwise may now have or may in the future have in any such interest, dividends, earnings or other income). The Equityholders’ Representative shall not be liable for any loss of principal of the Expense Amount other than as a result of its gross negligence, fraud or willful misconduct. The Equityholders’ Representative shall hold the Expense Amount (or any remaining portion thereof) separate from its corporate funds, shall not use the Expense Amount (or any remaining portion thereof) for its operating expenses or any other corporate purposes and shall not voluntarily make the Expense Amount (or any remaining portion thereof) available to its creditors in the event of bankruptcy. As soon as practicable following After the completion of the Equityholders’ Representative’s responsibilities, the Equityholders’ Representative shall deliver any remaining balance all responsibility of the Stockholder Representative, all remaining amounts in the Stockholder Representative Expense Fund shall (subject to Section 9.4(d)(vii)) be disbursed to the Payments Administrator (Agent for distribution, in accordance with the Applicable Updated Payout Schedule, to (i) the Stockholders who have duly surrendered their Certificates and delivered duly completed and validly executed Transmittal Letters and (ii) the Optionholders, after giving effect to any required withholding Taxes). The Parties agree that amounts distributed to Stockholders from the Expense Fund will be treated for tax purposes as deferred payments of purchase price, except distribution to the extent treated Company Holders as payments of interest pursuant to Section 483 or Section 1274 of the Codeadditional Merger Consideration.

Expense Fund. The On the Closing Date, Parent shall deposit $250,000 (the “Expense Amount shall be used Fund Amount”) of the Total Cash Consideration otherwise payable to the Indemnifying Parties pursuant to Section 1.6(b)(i), Section 1.6(c)(i), Section 1.6(d)(i) and Section 1.6(e)(i) into a segregated client account (the “Expense Fund”) designated by the Equityholders’ Representative for in a written notice delivered to Parent at least five (5) days prior to the purposes of paying directly, or reimbursing the Equityholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto (including the Escrow Agreement)Closing Date. The Equityholders’ Representative shall be entitled to any interest, dividends, earnings or other income received in respect Upon deposit of the Expense Amount (or any remaining portion thereof)Fund with the Representative in accordance with the foregoing sentence, and such interest, dividends, earnings or other income shall be treated as income earned by the Equityholders’ Representative for Tax purposes. No Equityholder shall be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect of the Expense Amount (and, to the fullest extent permitted by applicable Law, each Equityholder Parent shall be deemed to have irrevocably transferred withheld from each Indemnifying Party its Pro Rata Portion of the Expense Fund from the cash that otherwise would be payable upon the First Effective Time to such Indemnifying Party pursuant to Section 1.6(b)(i), Section 1.6(c)(i), Section 1.6(d)(i) and assigned Section 1.6(e)(i), and contributed on behalf of such Indemnifying Party its Pro Rata Portion of the Expense Fund to the Equityholders’ Representative. The Expense Fund is established solely to be used by the Representative to pay any fees, costs or other Representative Expenses it may incur in performing its duties or exercising its rights under this Agreement, any agreement ancillary hereto or the Representative Engagement Agreement. The Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that such Equityholder they may otherwise may now have or may in the future have had in any such interest, dividends, earnings interest or other income)earnings. The Equityholders’ Representative shall is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Amount Fund other than as a result of its gross negligence, fraud negligence or willful misconduct. The Equityholders’ Representative shall hold is not acting as a withholding agent or in any similar capacity in connection with the Expense Amount (Fund, and has no tax reporting or any remaining portion thereof) income distribution obligations. The Representative will hold these funds separate from its corporate funds, shall will not use the Expense Amount (or any remaining portion thereof) these funds for its operating expenses or any other corporate purposes and shall will not voluntarily make the Expense Amount (or any remaining portion thereof) these funds available to its creditors in the event of bankruptcy. As Subject to Advisory Group approval, the Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Parties. Contemporaneous with or as soon as practicable following the completion of the Equityholders’ Representative’s responsibilitiesduties, the Equityholders’ Representative shall will deliver any remaining the balance of the Expense Fund to the Payments Administrator (Exchange Agent for distributionfurther distribution to the Indemnifying Parties. For Tax purposes, in accordance with the Applicable Updated Payout Schedule, to (i) the Stockholders who have duly surrendered their Certificates and delivered duly completed and validly executed Transmittal Letters and (ii) the Optionholders, after giving effect to any required withholding Taxes). The Parties agree that amounts distributed to Stockholders from the Expense Fund will be treated for tax purposes as deferred payments having been received and voluntarily set aside by each Indemnifying Party at the time of purchase price, except to the extent treated as payments of interest pursuant to Section 483 or Section 1274 of the CodeClosing.

Expense Fund. The On the Closing Date, Parent shall deposit twenty five thousand dollars ($25,000) (the “Expense Amount shall be used Fund Amount”) in cash of the Total Cash Consideration otherwise payable to the Indemnifying Parties pursuant to Section 1.6(b)(i) into a segregated client account (the “Expense Fund”) designated by the Equityholders’ Shareholder Representative for in a written notice delivered to Purchaser at least five (5) days prior to the purposes of paying directly, or reimbursing the Equityholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto (including the Escrow Agreement)Closing Date. The Equityholders’ Representative shall be entitled to any interest, dividends, earnings or other income received in respect Upon deposit of the Expense Amount (or any remaining portion thereof)Fund with the Shareholder Representative in accordance with the foregoing sentence, and such interest, dividends, earnings or other income shall be treated as income earned by the Equityholders’ Representative for Tax purposes. No Equityholder shall be entitled to, or have any right to receive, any interest, dividends, earnings or other income received in respect of the Expense Amount (and, to the fullest extent permitted by applicable Law, each Equityholder Parent shall be deemed to have irrevocably transferred withheld from each Indemnifying Party its Pro Rata Portion of the Expense Fund from the cash that otherwise would be payable upon the First Effective Time to such Indemnifying Party pursuant to Section 1.6(b)(i), and assigned contributed on behalf of such Indemnifying Party its Pro Rata Portion of the Expense Fund to the Equityholders’ Shareholder Representative. The Expense Fund is established solely to be used by the Shareholder Representative to pay any fees, costs or other expenses it may incur in performing its duties or exercising its rights under this Agreement, any agreement ancillary hereto or any Shareholder Representative engagement agreement. The Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Shareholder Representative any ownership right that such Equityholder they may otherwise may now have or may in the future have had in any such interest, dividends, earnings interest or other income)earnings. The Equityholders’ Shareholder Representative shall will not be liable for any loss of principal of the Expense Amount Fund other than as a result of its gross negligence, fraud negligence or willful misconduct. The Equityholders’ Shareholder Representative shall will hold the Expense Amount (or any remaining portion thereof) these funds separate from its corporate funds, shall will not use the Expense Amount (or any remaining portion thereof) these funds for its operating expenses or any other corporate purposes and shall will not voluntarily make the Expense Amount (or any remaining portion thereof) these funds available to its creditors in the event of bankruptcy. As Contemporaneous with or as soon as practicable following the completion of the Equityholders’ Shareholder Representative’s responsibilitiesduties, the Equityholders’ Shareholder Representative shall will deliver any remaining the balance of the Expense Fund to the Payments Administrator (Exchange Agent for distributionfurther distribution to the Indemnifying Parties. For Tax purposes, in accordance with the Applicable Updated Payout Schedule, to (i) the Stockholders who have duly surrendered their Certificates and delivered duly completed and validly executed Transmittal Letters and (ii) the Optionholders, after giving effect to any required withholding Taxes). The Parties agree that amounts distributed to Stockholders from the Expense Fund will be treated for tax purposes as deferred payments having been received and voluntarily set aside by each Indemnifying Party at the time of purchase price, except to the extent treated as payments of interest pursuant to Section 483 or Section 1274 of the CodeClosing.