Common use of Parent Closing Payments Clause in Contracts

Parent Closing Payments. At the Effective Time, Parent shall: (i) transfer to the Exchange Agent the cash portion of the Merger Consideration payable at Closing pursuant to Section 1.6(b)(i) in exchange for shares of Company Capital Stock and the payment to Company Note Holders, in each case outstanding as of immediately prior to the Effective Time; (ii) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration payable pursuant to Section 1.6(b)(i) to the Retention Participants; (iii) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (iv) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s accounts payable, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (v) transfer the Tail Fund Amount to the Escrow Agent to hold in trust as an escrow fund (the “Tail Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement; (vii) transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to the terms of this Agreement (the “Representative Expense Fund”). The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the ancillary agreements. The Stockholders will not receive Table of Contents any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder 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; (viii) pay on behalf of the Company the amounts of any Indebtedness (excluding for this purpose the Company Notes) at Closing, in amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant to the written instructions contained in such Payoff Letters; and (ix) pay on behalf of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant to the written instructions contained in such Payoff Letters.

Parent Closing Payments. At the Effective Time, Parent shall: (i) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than one (1) Business Day following the Closing Date), Parent shall initiate transfer, or cause to be transferred, to the Exchange Agent the amount of cash portion and stock payable to the Stockholders (including holders of the Merger Consideration payable Vested Company Options) at Closing pursuant to Section 1.6(b)(i) in exchange for all shares of Company Capital Stock and the payment to Company Note Holders, in each case outstanding as of immediately prior to the First Merger Effective Time;. (ii) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than one (1) Business Day following the Closing Date), Parent shall initiate transfer, or cause to be transferred, the Surviving CorporationEscrow Amount, for further payment through in the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion form of the Merger Consideration payable pursuant to Section 1.6(b)(i) to the Retention Participants; (iii) transfer to the Surviving CorporationEscrow Shares and Escrow Cash together, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (iv) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s accounts payable, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (v) transfer the Tail Fund Amount to the Escrow Agent to hold in trust as an escrow fund (the “Tail Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement;. Upon deposit of the Escrow Amount with the Escrow Agent in accordance with the preceding sentence, Parent shall be deemed to have contributed each relevant Stockholder’s Pro Rata Portion of the Escrow Amount to the Escrow Fund. The Escrow Fund shall be provided in a mix of cash and stock pursuant to the terms hereof. The Stockholders shall have all rights associated with beneficial ownership of the Escrow Shares, including the rights to vote and receive dividends with respect to the Escrow Shares, other than the right to transfer or dispose of the Escrow Shares; provided, that any dividends paid on the Escrow Shares while held in the Escrow Fund shall be retained as part of the Escrow Fund and paid under the terms of this Agreement and the Escrow Agreement. It is intended that, for applicable Tax purposes, the Stockholders shall be treated as the owners of the Escrow Shares as of the Closing Date. (viiiii) At the First Merger Effective Time, Parent shall transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to (the “Representative Fund”) under the terms of this Agreement (the “Representative Expense Fund”)Agreement. The Representative Expense Fund will be used (i) for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses Stockholder Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement and or any Stockholder Representative Engagement Agreement, or (ii) as otherwise determined by the ancillary agreementsAdvisory Group. The Stockholders Indemnifying Parties will not receive Table of Contents any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership or other right that they may otherwise have had in any such interest or earnings. The Stockholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Fund and has no tax reporting or income distribution obligations. The Stockholder 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; (viii) pay on behalf . Subject to Advisory Group approval, the Stockholder Representative may contribute funds to the Representative Fund from any consideration otherwise distributable to the Indemnifying Parties. Upon deposit of the Company Representative Expense Amount with the amounts Stockholder Representative in accordance with this Section 1.8(b)(iii), for tax purposes Parent shall be deemed to have paid each relevant Indemnifying Party its, his or her Pro Rata Portion of any Indebtedness (excluding for this purpose the Company Notes) at Closing, in amounts set forth in the Payoff Letters Representative Expense Amount and the Statement of Expenses, by wire transfer of immediately available funds, pursuant then each such Indemnifying Party shall be deemed to have voluntarily contributed such amount to the written instructions contained Representative Fund, any withholding in such Payoff Letters; respect thereof shall be satisfied from the Total Stockholder Closing Cash Consideration owing to the Indemnifying Party on the Closing Date and (ix) pay on behalf , for the avoidance of doubt, the amount of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant Representative Fund that is returned to the written instructions contained in such Payoff LettersIndemnifying Parties shall not again be subject to information reporting or withholding.

Parent Closing Payments. At the Effective Time, Parent shall: (i) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer, or cause to be transferred, to the Exchange Agent the amount of cash portion of and stock payable to the Merger Consideration payable Stockholders at Closing pursuant to Section 1.6(b)(i) in exchange for all shares of Company Capital Stock and the payment to Company Note Holders, in each case outstanding as of immediately prior to the First Merger Effective Time;. (ii) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer, or cause to be transferred, to the Surviving CorporationCompany a cash amount, for further payment through by wire transfer of immediately available funds to an account designated by the Surviving Corporation’s payroll processing system net Company prior to the Closing, equal to the aggregate amount payable in respect of applicable Tax withholdings, that portion of the Merger Consideration payable all Company Options pursuant to Section 1.6(b)(i) 1.6(b)(iv), for distribution to the Retention Participants;holders of the Vested Company Options through the Company’s payroll system. (iii) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer, or cause to the Surviving Corporationbe transferred, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (iv) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s accounts payable, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (v) transfer the Tail Fund Amount to the Escrow Agent to hold in trust as an escrow fund (the “Tail Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement;. Upon deposit of the Escrow Amount with the Escrow Agent in accordance with the preceding sentence, Parent shall be deemed to have contributed each relevant Stockholder’s Pro Rata Portion of the Escrow Amount to the Escrow Fund. (viiiv) At the First Merger Effective Time, Parent shall transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to (the “Representative Fund”) under the terms of this Agreement (the “Representative Expense Fund”)Agreement. The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the ancillary agreements. The Stockholders will not receive Table of Contents any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder 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; (viii) pay on behalf . Upon deposit of the Company Representative Expense Amount with the amounts Stockholder Representative in accordance with this Section 1.8(b)(iv), for tax purposes Parent shall be deemed to have paid each relevant Stockholder its, his or her Pro Rata Portion of any Indebtedness (excluding for this purpose the Company Notes) at Closing, in amounts set forth in the Payoff Letters Representative Expense Amount and the Statement of Expenses, by wire transfer of immediately available funds, pursuant then each such Stockholder shall be deemed to have voluntarily contributed such amount to the written instructions contained Representative Fund, any withholding in such Payoff Letters; respect thereof shall be satisfied from the Total Stockholder Closing Cash Consideration owing to the Stockholder on the Closing Date and (ix) pay on behalf , for the avoidance of doubt, the amount of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant Representative Fund that is returned to the written instructions contained in such Payoff LettersStockholders shall not again be subject to information reporting or withholding.

Parent Closing Payments. At the Effective Time, Parent shall: (i) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer, or cause to be transferred, (i) to the Exchange Agent the amount of cash portion and the number of shares of Parent Common Stock (less the Merger number of shares of Parent Common Stock subject to the Consideration Holdback Agreement) payable to the Stockholders at the Closing pursuant to Section 1.6(b)(i) in exchange for all shares of Company Capital Stock and the payment to Company Note Holders, in each case outstanding as of immediately prior to the First Merger Effective Time;Time and (ii) to the Escrow Agent the number of shares of Parent Common Stock to be held and distributed in accordance with the terms of the Consideration Holdback Agreement. (ii) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer, or cause to be transferred, to the Surviving CorporationCompany a cash amount, for further payment through by wire transfer of immediately available United States funds to an account designated by the Surviving Corporation’s payroll processing system net Company prior to the Closing, equal to the aggregate amount payable in respect of applicable Tax withholdings, that portion of the Merger Consideration payable all Company Options pursuant to Section 1.6(b)(i) 1.6(b)(iv)(A), for distribution to the Retention Participants;holders of the Vested Company Options through the Company’s payroll system. (iii) transfer On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer, or cause to the Surviving Corporationbe transferred, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (iv) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s accounts payable, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (v) transfer the Tail Fund Amount to the Escrow Agent to hold in trust as an escrow fund (the “Tail Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement;. Upon deposit of the Escrow Amount with the Escrow Agent in accordance with the preceding sentence, Parent shall be deemed to have contributed each relevant Stockholder’s and Vested Company Optionholder’s Pro Rata Portion of the Escrow Amount to the Escrow Fund. (viiiv) At the First Merger Effective Time, Parent shall transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to (the “Representative Fund”) under the terms of this Agreement (the “Representative Expense Fund”)Agreement. The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the ancillary agreements. The Stockholders and Vested Company Optionholders will not receive Table of Contents any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder 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; (viii) pay on behalf . Upon deposit of the Representative Expense Amount with the Stockholder Representative in accordance with this Section 1.8(b)(iv), for Tax purposes Parent shall be deemed to have paid each relevant Stockholder and Vested Company Optionholder its, his or her Pro Rata Portion of the Representative Expense Amount and then each such Stockholder and Vested Company Optionholder shall be deemed to have voluntarily contributed such amount to the Representative Fund, any withholding in respect thereof shall be satisfied from the Total Stockholder Closing Cash Consideration owing to the Stockholder or Total Vested Optionholder Closing Cash Consideration owing to the Vested Company Optionholder, as applicable, on the Closing Date and, for the avoidance of doubt, the amount of the Representative Fund that is returned to the Stockholders or Vested Company Optionholders shall not again be subject to information reporting or withholding. As soon as reasonably determined by the Stockholder Representative that the Representative Fund is no longer required to be withheld, the Stockholder Representative shall distribute or cause the distribution of the remaining portion of the Representative Fund (if any) to the Stockholders and Vested Company Optionholders; provided, however, that while any amounts of any Indebtedness (excluding for this purpose the Company Notes) at Closing, in amounts set forth remain in the Payoff Letters Escrow Fund, the Stockholder Representative may deliver such portion of the Representative Fund to the Escrow Agent for further distribution to the Stockholders and Vested Company Optionholders in accordance with their respective Pro Rata Portions; provided, further, that any such amounts delivered to the Statement Escrow Agent for distribution to the Stockholders and Vested Company Optionholders shall be promptly distributed to the Stockholders and Vested Company Optionholders and not serve as a source of Expenses, by wire transfer of immediately available funds, recovery for indemnification claims pursuant to this Agreement that are recoverable solely against the written instructions contained in such Payoff Letters; and (ix) pay on behalf of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, Escrow Fund pursuant to the written instructions contained in such Payoff LettersSection 7.2(a)(i).

Parent Closing Payments. (i) At the Effective Time, Parent shall: , or shall cause one of its Subsidiaries (iincluding the Surviving Corporation after the Effective Time) transfer to, pay to the Exchange Paying Agent the amount of cash portion of payable to the Merger Consideration payable Holders at the Closing pursuant to Section 1.6(b)(i) and as set forth on the Payment Spreadsheet in exchange for respect of all shares of Company Capital Stock and the payment to Company Note Holders, in each case Warrants held by such Holder outstanding as of immediately prior to the Effective Time;. (ii) transfer At the Effective Time, Parent shall, or shall cause one of its Subsidiaries (including the Surviving Corporation after the Effective Time) to, pay to the Surviving CorporationCorporation in respect of all Vested Company Options the amount of cash payable to the Holders at the Closing pursuant to Section 1.6(b)(i) and as set forth on the Payment Spreadsheet in respect of all Vested Company Options held by such Holders outstanding as of immediately prior to the Effective Time. For purposes of clarity, for further payment the Closing Per Option Amount with respect to each Vested Company Option shall be paid through the Surviving Corporation’s payroll processing system net on the first (1st) or the second (2nd) normal payroll date of applicable Tax withholdingsthe Company following the Effective Time, that and the portion of the Merger Consideration payable pursuant Holdback Amount and Representative Expense Fund entitled to Section 1.6(b)(i) be distributed to holders of Vested Company Options shall be paid to the Retention Participants; (iii) transfer Company for the benefit of the holders of Vested Company Options and shall be paid to the Surviving Corporation, for further payment such holders in accordance with their respective Pro Rata Portions with respect to Vested Company Options through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion on the first (1st) or the second (2nd) normal payroll date of the Merger ConsiderationSurviving Corporation following the Surviving Corporation’s receipt of such funds to be distributed to such holders of Vested Company Options. (iii) At the Closing, if any, payable Parent shall be entitled to retain the Holdback Amount in accordance with the terms of this Agreement and each Holder shall be deemed to have contributed such Holder’s Aggregate Pro Rata Portion of the Holdback Amount. The Holdback Amount shall constitute partial security for the indemnification obligations of such Stockholder pursuant to Section 1.6(c)(i) Article VII and shall be held and distributed in exchange for Vested Company Options that were granted to accordance with the holder in the holder’s capacity as an employee provisions of the Company or any of its Subsidiaries for applicable employment Tax purposes;this Agreement. (iv) transfer to On the Surviving CorporationClosing Date, for further payment through the Surviving Corporation’s accounts payableParent shall, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any shall cause one of its Subsidiaries for applicable employment Tax purposes; (vincluding the Surviving Corporation after the Effective Time) transfer to, pay the Tail Fund Representative Expense Amount to the Escrow Agent Representative to hold in trust as an escrow fund (the “Tail Representative Expense Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement; (vii) transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to the terms of this Agreement (the “Representative Expense Fund”). The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses Representative Expenses pursuant to this Agreement and the ancillary agreementsRelated Agreements. The Stockholders Holders will not receive Table of Contents any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder 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; (viii) pay on behalf . Upon deposit of the Company Representative Expense Amount with the amounts Representative in accordance with this Section 1.8(b)(iv), for all purposes Parent shall be deemed to have paid each Holder’s Aggregate Pro Rata Portion of any Indebtedness the Representative Expense Fund (excluding for this purpose the Company Notesand Parent shall have no further liability with respect thereto) at Closing, in amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant then each such Holder shall be deemed to have voluntarily contributed such amount to the written instructions contained Representative Expense Fund. Any withholding in respect of such Payoff Letters; deemed contribution shall be satisfied from the Merger Consideration owing to the Holder on the Closing Date and (ix) pay on behalf , for the avoidance of doubt, the amount of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant Representative Expense Fund (if any) that is returned to the written instructions contained in such Payoff LettersHolders shall not again be subject to information reporting or withholding.

Parent Closing Payments. At the Effective Time, Parent shall: (i) On the Closing Date, Parent shall transfer to the Exchange Agent the cash portion of the Merger Consideration payable at Closing pursuant to Section 1.6(b)(i) in exchange for shares of Company Capital Stock and the payment to Company Note Holders, in each case outstanding as of immediately prior to the First Merger Effective Time;. (ii) transfer to On the Surviving CorporationClosing Date or as soon as practicable thereafter (but in no event later than three (3) Business Days following the Closing Date), for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration payable pursuant to Section 1.6(b)(i) to the Retention Participants; (iii) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (iv) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s accounts payable, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (v) transfer the Tail Fund Amount to Parent shall issue the Escrow Agent to hold in trust as an escrow fund (the “Tail Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount Shares to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement;. Upon deposit of the Escrow Amount with the Escrow Agent in accordance with the preceding sentence, Parent shall be deemed to have contributed on behalf of each Stockholder (other than holders of Company Restricted Stock solely in their capacity as holders of Company Restricted Stock) and Non-Employee Director (solely in their capacity as holders of Company Restricted Stock) such Person’s Pro Rata Portion of the Escrow Amount to the Escrow Fund. (viiiii) At the First Merger Effective Time, Parent shall transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to (the “Representative Escrow Fund”) under the terms of this Agreement (the “Representative Expense Fund”)Agreement. The Representative Expense Escrow Fund will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the ancillary agreements. The Stockholders and Non-Employee Directors will not receive Table of Contents any interest or earnings on the Representative Expense Escrow Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Representative Expense Escrow Fund other than as a result of its gross negligence or willful misconduct. The Stockholder 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; (viii) pay on behalf . Upon deposit of the Representative Expense Amount with the Stockholder Representative in accordance with this Section 1.8(b)(iii), for tax purposes Parent shall be deemed to have paid each Stockholder (other than holders of Company Restricted Stock solely in their capacity as holders of Company Restricted Stock) and Non-Employee Director (solely in their capacity as holders of Company Restricted Stock ) its, his or her Pro Rata Portion of the amounts of any Indebtedness (excluding for this purpose the Company Notes) at Closing, in amounts set forth in the Payoff Letters Representative Expense Amount and the Statement of Expenses, by wire transfer of immediately available funds, pursuant then each Stockholder and Non-Employee Director shall be deemed to have voluntarily contributed such amount to the written instructions contained in such Payoff Letters; and (ix) pay on behalf of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant to the written instructions contained in such Payoff LettersRepresentative Escrow Fund.

Parent Closing Payments. At the Effective Time, Parent shall: (i) On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer or issue, or cause to be transferred or issued, to the Exchange Agent the amount of cash portion of payable to the Merger Consideration payable Stockholders at Closing pursuant to Section 1.6(b)(i) in exchange for shares of Company Capital Stock and the payment to Company Note Holders, in each case outstanding as of immediately prior to the Effective Time;. (ii) On the Closing Date (or as soon as practicable thereafter (but in no event later than two (2) Business Days following the Closing Date)), Parent shall transfer or issue, or cause to the Surviving Corporationbe transferred or issued, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration payable pursuant to Section 1.6(b)(i) to the Retention Participants; (iii) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s payroll processing system net of applicable Tax withholdings, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (iv) transfer to the Surviving Corporation, for further payment through the Surviving Corporation’s accounts payable, that portion of the Merger Consideration, if any, payable pursuant to Section 1.6(c)(i) in exchange for Vested Company Options that were not granted to the holder in the holder’s capacity as an employee of the Company or any of its Subsidiaries for applicable employment Tax purposes; (v) transfer the Tail Fund Amount to the Escrow Agent to hold in trust as an escrow fund (the “Tail Fund”) under the terms of this Agreement and the Escrow Agreement; (vi) transfer the Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the “Escrow Fund”) under the terms of this Agreement and the Escrow Agreement;. Upon deposit of the Escrow Amount with the Escrow Agent in accordance with the preceding sentence, Parent shall be deemed to have contributed each relevant Stockholder’s Pro Rata Portion of the Escrow Amount to the Escrow Fund. (viiiii) At the Effective Time, Parent shall transfer the Representative Expense Amount to the Stockholder Representative to hold pursuant to (the “Representative Escrow Fund”) under the terms of this Agreement (the “Representative Expense Fund”)Agreement. The Representative Expense Escrow Fund will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the ancillary agreements. The Stockholders will not receive Table of Contents any interest or earnings on the Representative Expense Escrow Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Representative Expense Escrow Fund other than as a result of its gross negligence or willful misconduct. The Stockholder 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; (viii) pay on behalf . Upon deposit of the Company Representative Expense Amount with the amounts Stockholder Representative in accordance with this Section 1.7(b)(iii), for tax purposes Parent shall be deemed to have paid each relevant Stockholder its, his or her Pro Rata Portion of any Indebtedness (excluding for this purpose the Company Notes) at Closing, in amounts set forth in the Payoff Letters Representative Expense Amount and the Statement of Expenses, by wire transfer of immediately available funds, pursuant then each such Stockholder shall be deemed to have voluntarily contributed such amount to the written instructions contained Representative Escrow Fund, any withholding in such Payoff Letters; respect thereof shall be satisfied from the Total Common Closing Merger Consideration owing to the Stockholder on the Closing Date and (ix) pay on behalf , for the avoidance of doubt, the amount of the Company the amounts of any Third Party Expenses unpaid at the Closing, in the amounts set forth in the Payoff Letters and the Statement of Expenses, by wire transfer of immediately available funds, pursuant Representative Escrow Fund that is returned to the written instructions contained in such Payoff LettersStockholders shall not again be subject to information reporting or withholding. For the avoidance of doubt, the holders of shares of Company Series C Preferred Stock shall not be deemed to have received any portion of the Representative Escrow Fund relating to their ownership of Company Series C Preferred Stock.