Securityholders’ Representative Expense Fund. (a) The Securityholders’ Representative Expense Amount may be used at any time by the Securityholders’ Representative to fund or reimburse any expenses incurred by it in the performance of its duties and obligations hereunder or under the Escrow Agreement, including those duties and obligations set forth in Article X. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Securityholders’ Representative Expense Amount other than as a result of its fraud, bad faith, gross negligence or willful misconduct. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Securityholders’ Representative Expense Amount, and has no Tax reporting or income distribution obligations. The Securityholders will not receive any interest or earnings on the Securityholders’ Representative Expense Amount and irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Parties agree for all income Tax purposes that the Securityholders’ Representative Expense Amount shall be treated as having been received and voluntarily set aside by the Securityholders on the Closing Date. Information marked “[***]” has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it (i) is not material and (ii) is the type of information the registrant customarily and actually treats as private or confidential. 44
Securityholders’ Representative Expense Fund. Each of the Company Securityholders shall agree to reimburse the Securityholders’ Representative for any fees and expenses incurred by the Securityholders’ Representative in its capacity as agent, proxy or attorney in fact of the Company Securityholders in connection with this Agreement or the transactions contemplated herein, including the payment by the Securityholders’ Representative of the Transfer Taxes pursuant to Section 3.5(h). At the Closing, the Securityholders’ Representative shall notify Parent in writing of an amount to be determined by the Securityholders’ Representative, at its reasonable sole discretion (the “Securityholders’ Representative Expense Fund”), which amount Parent shall pay to the Securityholders’ Representative in accordance with Section 3.4(e) and which amount the Securityholders’ Representative shall hold in trust to cover and reimburse the fees and expenses incurred by the Securityholders’ Representative for its obligations in connection with this Agreement and the transactions contemplated herein. Any balance of the Securityholders’ Representative Expense Fund not incurred for such purposes shall be returned to the Company Securityholders in accordance with each respective Company Securityholder’s Pro Rata Share.
Securityholders’ Representative Expense Fund. Parent shall deposit with the Securityholders’ Representative, by wire transfer of immediately available funds, the amount required to be paid to the Securityholders’ Representative for the benefit of the Company Securityholders pursuant to Section 13.4. The Securityholders’ Representative Expense Fund is a portion of the Merger Consideration and shall be deducted from the Estimated Closing Payment.
