Representative Fund. Representative shall use the Representative Fund to pay directly, or reimburse the Representative for, all third party out-of-pocket costs and expenses incurred by or on behalf of the Representative, in its capacity as such, including all costs and expenses incurred by the Representative in connection with any pending or threatened dispute or claim with respect to this Agreement, any agreement, document or instrument entered into pursuant to this Agreement, or reasonably related to the transactions contemplated hereby or thereby in its sole discretion. The Stockholders shall not receive any interest or earnings on the Representative Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative shall not be liable for any loss of principal of the Representative Fund other than as a result of its willful and knowing violation of the laws or this Agreement. The Representative shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of bankruptcy. Contemporaneous with or as soon as practicable following the completion of the Representative’s duties, the Representative shall deliver the balance of the Representative Fund to the Payment Agent for further distribution to the Stockholders in accordance with their Allocable Percentages. The Representative Fund shall be held or disbursed, in whole or in part, as determined by the Representative. The retention by the Representative of any amounts in the Representative Fund shall not be used as evidence that Stockholders have any liability hereunder.
Representative Fund. The Representative shall use the Representative Fund to (i) pay any unpaid Company Transaction Cost and (ii) pay all costs and expenses incurred by or on behalf of the Seller Representative, in his capacity as such, including all costs and expenses incurred by the Seller Representative in connection with any dispute or claim with respect to the transactions contemplated hereby. The Representative Fund will be held or disbursed, in whole or in part, as determined in good faith by the Seller Representative. Excess amounts (as determined in good faith by the Seller Representative from time to time) will be released from the Representative Fund to the Sellers in accordance with their relative Pro Rata Interests. The Representative Fund will be increased by any payments received by the Seller Representative, in his capacity as such, pursuant to any other provision of this Agreement, and by any interest that may accrue on the amounts in the Representative Fund Account.
Representative Fund. Immediately following the Effective Time, Parent shall deliver to the Stockholder Representative an amount of cash equal to the Representative Fund, which shall reduce the Aggregate Cash Consideration. The Representative Fund shall be used by the Stockholder Representative solely for payment of out-of-pocket expenses, in each instance incurred by the Stockholder Representative in connection with the performance of the Stockholder Representative’s duties and obligations hereunder. Notwithstanding anything to the contrary herein, in no event shall (i) any Indemnified Party have any rights in or to the Representative Fund or (ii) Parent have any obligation or incur any expense with respect to the Representative Fund. Parent shall not have any responsibility or liability for the manner in which the Stockholder Representative uses the amount reserved for the Representative Fund. Promptly following the distribution of the Escrow Fund pursuant to the terms of Section 8.5 and resolution of all pending claims identified in any officer’s certificate, the remainder of the Representative Fund, if any, shall be distributed by the Escrow Agent on behalf of the Stockholder Representative to the Effective Time Stockholders based on such Effective Time Stockholders’ Pro Rata Portion of the Representative Fund. Parent shall have no obligation with respect to the distribution of any remaining amount of the Representative Fund.
Representative Fund. Immediately following the Effective Time, cash in an amount equal to the Representative Fund shall be delivered by Parent, on behalf of the Indemnifying Stockholders, to the depository agent to be held and distributed pursuant to the provisions of the Escrow Agreement. For the avoidance of doubt, the Representative Fund shall be a portion of the aggregate consideration to be received by the Indemnifying Stockholders pursuant to the Merger. The Representative Fund shall be used by the Stockholder Representative solely for payment of out-of-pocket expenses, in each instance incurred by the Stockholder Representative in connection with the performance of the Stockholder Representative’s duties and obligations hereunder and pursuant to the Escrow Agreement. The Representative Fund shall be available to the Stockholder Representative in addition to any amounts paid to the Stockholder Representative. Notwithstanding anything to the contrary herein, in no event shall (i) any Parent Indemnified Party have any rights in or to the Representative Fund or (ii) the Company (following the Closing), Parent, Merger Sub or the Surviving Corporation have any obligation or incur any expense with respect to the Representative Fund or pay or otherwise be liable for any amounts owed to or incurred by the Stockholder Representative. None of Parent, Merger Sub or the Surviving Corporation shall have any responsibility or liability for the manner in which the Stockholder Representative uses the amount reserved for the Representative Fund. For Tax purposes, the Representative Fund shall be treated as having been received and then set aside by the Indemnifying Stockholders immediately following the Effective Time; provided, however, that to the extent practicable, any withholding in respect of the Representative Fund shall be satisfied from other sources owing to the Indemnifying Stockholders at the Effective Time. The Representative Fund, if any, shall be distributed by the Escrow Agent on behalf of the Stockholder Representative to the Indemnifying Stockholders at the time, and upon the terms and conditions set forth in the Escrow Agreement. Parent or Merger Sub shall have no obligation with respect to the distribution of any remaining amount of the Representative Fund.
Representative Fund. (a) If, at any time prior to the eighteen month anniversary of the Effective Time (the "Representative Fund Release Date"), the Representative (a) on behalf of the Stockholders and Optionholders in its capacity as Representative, incurs out-of-pocket costs and expenses ("Out-of-Pocket Expenses") or (b) in connection with the acceptance or administration of the Representative's duties under this Agreement or the Merger Agreement incurs, without gross negligence or bad faith on the part of the Representative, any loss, liability or expense ("Indemnification Expenses"), the Representative may give written notice (an "Expense Notice") to the Agent and the Buyer setting forth in reasonable detail the nature and amount of such Out-of-Pocket Expenses or Indemnification Expenses. Upon receipt of any Expense Notice, the Agent shall promptly distribute to the Representative from the Representative Fund an amount equal to the Out-of-Pocket Expenses or Indemnification Expenses set forth in the Expense Notice by wire transfer of immediately available funds to a bank account designated by the Representative. The Representative shall not be entitled to any payment hereunder for Out-of-Pocket Expenses or Indemnification Expenses from the Stockholders, the Optionholders, the Buyer or the Surviving Corporation after the Representative Fund has been exhausted.
Representative Fund. The Representative shall use the Representative Fund to (a) make any payment required to be made for the account of the Sellers pursuant to this Agreement, (b) pay any Sellers’ Expenses not otherwise paid at the Closing and (c) pay all costs and expenses incurred by or on behalf of the Representative, in its capacity as such, including all costs and expenses incurred in connection with any pending or threatened dispute or claim with respect to this Agreement, any agreement, document or instrument entered into pursuant to this Agreement, or the transactions contemplated hereby or thereby. The Representative Fund shall be held or disbursed, in whole or in part, as determined by the Representative. The retention by the Representative of any amounts in the Representative Fund shall not be used as evidence that the Sellers have any liability hereunder. Any amounts received by the Representative, in its capacity as such, including any amounts released from the Escrow Fund, may be used at the Representative’s discretion to increase the Representative Fund. If the Representative determines to release all or a portion of the Representative Fund, such amounts shall be distributed to the Sellers in accordance with the Payment Spreadsheet.
Representative Fund. At the Closing, Parent shall deposit into an account designated by the Representative the sum of $150,000 (the “Representative Fund”), for payment or reimbursement of expenses incurred by the Representative in performing the duties of the Representative under this Agreement, the Representative Agreement, the Note Holder Payoff and Recapitalization Agreement and the Escrow Agreement. Any amount remaining in the Representative Fund after payment or reimbursement of all expenses incurred by the Representative under the terms of this Agreement, the Note Holder Payoff and Recapitalization Agreement, the Representative Agreement and the Escrow Agreement will be distributed by the Representative to the Persons entitled thereto as determined pursuant to the terms of the Note Holder Payoff and Recapitalization Agreement.
Representative Fund. The Closing Consideration shall include the sum of $250,000 (the “Representative Fund Amount”) to be withheld by the Representative at the Closing and available for use by the Representative in its discretion following the Closing for the payment of all reasonable out-of-pocket costs and expenses incurred by the Representative in connection with the exercise by it of the authority granted to it herein (including reasonable attorneys’ fees and expenses, the fees and expenses of any accountants or other professional advisors retained by the Representative and any portion of the fees and expenses of the Accounting Firm for which the Representative is liable hereunder) (the “Representative Fund”). Any amount remaining in the Representative Fund after the final resolution of all claims asserted hereunder, shall be distributed to the Sellers in accordance with their respective Allocation Percentages, as if such amount had been included in the Closing Consideration.
Representative Fund. 10.4.1 Each Seller hereby unconditionally and irrevocably acknowledge and accept that the Buyer from the Initial Purchase Price shall pay cash in the amount of the Representative Fund Amount to an account designated in writing by the Majority Sellers (the “Representative Fund”). The Representative Fund Amount is received by the Majority Sellers on behalf of the Sellers and is voluntarily set aside by each Seller at the time of Closing to cover any expenses and payments that such Seller may be obliged to pay hereunder. The Majority Sellers shall make determinations as to the release of any portion of the Representative Fund Amount (i) to the Majority Sellers, to compensate or reimburse the Majority Sellers for any loss, liability or expense incurred or arising out of, or in connection with, performing its assignment as representative of the Sellers under the Transaction Documents (except to the extent arising as a result of fraud committed by the Majority Sellers); or (ii) to the Sellers in proportion to their respective pro rata share of the Representative Fund Amount. Each Seller acknowledges and accepts to pay its pro rata portion of any expenses or other fees.
Representative Fund. The Representative Fund will be used for the purposes of paying directly, or reimbursing the Equityholder Representative for, any expenses pursuant to this Agreement, the Ancillary Agreements or any other agreements ancillary hereto. Following the completion of the Equityholder Representative’s responsibilities, the Equityholder Representative shall disburse the balance of the Representative Fund to the Equityholders in proportion to their respective Applicable Percentages. The Equityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Fund.
