Common use of Surviving Corporation to Provide Funds Clause in Contracts

Surviving Corporation to Provide Funds. At or before the Closing, Parent or Sub shall deposit (or cause to be deposited) with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration for all shares of Common Stock and the aggregate Preferred Share Merger Consideration for all shares of Series A Convertible Preferred Stock (such amounts, the “Exchange Fund”). The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of shares of Common Stock and Series A Convertible Preferred Stock and (ii) promptly applied to making the payments provided for in Section 2.1. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by Parent, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, commercial paper obligations receiving the highest rating from either Xxxxx’x Investors Service, Inc. or Standard & Poor’s or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a combination thereof, provided that, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be kept in the Exchange Fund until such time as Parent directs that such interest and other income be delivered to Parent. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of such funds) that remains undistributed to the holders of shares of Common Stock six months after the Effective Time of the Merger shall be delivered to Parent at such time. Thereafter, holders of shares of Common Stock and Series A Convertible Preferred Stock shall look only to Parent (subject to the terms of this Agreement) as a general creditor for payment of the Merger Consideration or Preferred Share Merger Consideration, as the case may be, without interest, upon the surrender of any Common Stock Certificates or Book Entry Shares held by them.

Surviving Corporation to Provide Funds. At or before Prior to the Closingfiling of the Certificate of Merger with the Secretary of State of the State of Delaware, Parent or Sub shall deposit (or cause to be deposited) with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration for all shares of Common Stock other than shares to be cancelled pursuant to Section 3.1(a), and the aggregate Preferred Share Merger Consideration for all shares of Series A Convertible Preferred Stock Dissenting Company Shares (such amounts, the “Exchange Fund”). The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the applicable holders of shares of Common Stock and Series A Convertible Preferred Stock and (ii) subject to Section 3.3(c) promptly applied to making the payments provided for in Section 2.13.1. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by the Parent, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, commercial paper obligations receiving the highest rating from either Xxxxx’x Investors Service, Inc. or Standard & Poor’s or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a combination thereof, provided that, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be kept in the Exchange Fund until such time as Parent directs that such interest and other income be delivered to ParentFund. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of such funds) that remains undistributed to the holders of shares of Common Stock six nine months after the Effective Time of the Merger shall be delivered to Parent at such time. Thereafter, holders of shares of Common Stock and Series A Convertible Preferred Stock shall look only to Parent (subject to the terms of this Agreement) as a general creditor for payment of the Merger Consideration or Preferred Share Merger Consideration, as the case may be, without interest, upon the surrender of any Common Stock Certificates or Book Entry evidence of ownership of Uncertificated Shares held by them.

Surviving Corporation to Provide Funds. At or before Prior to the Closingfiling of the Certificate of Merger with the Secretary of State of the State of Delaware, Parent or Sub shall deposit (or cause to be deposited) with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration for all shares of Common Stock and the aggregate Preferred Share Merger Consideration for all other than shares of Series A Convertible Preferred Stock to be cancelled pursuant to Section 3.1(a)(determined as though there are no Dissenting Company Shares) (such amounts, the “Exchange Fund”). The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the applicable holders of shares of Common Stock and Series A Convertible Preferred Stock and (ii) promptly applied to making the payments provided for in Section 2.13.1. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by the Parent, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, commercial paper obligations receiving the highest rating from either Xxxxx’x Mxxxx’x Investors Service, Inc. or Standard & Poor’s or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a combination thereof, provided that, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be kept in the Exchange Fund until such time as Parent directs that such interest and other income be delivered to ParentFund. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of such funds) that remains undistributed to the holders of shares of Common Stock six Shares nine months after the Effective Time of the Merger shall be delivered to Parent at such time. Thereafter, holders of shares of Common Stock and Series A Convertible Preferred Stock shall look only to Parent (subject to the terms of this Agreement) as a general creditor for payment of the Merger Consideration or Preferred Share Merger Consideration, as the case may be, without interest, upon the surrender of any Common Stock Certificates or Book Entry Shares held by them.

Surviving Corporation to Provide Funds. At or before Prior to the Closingfiling of the Certificate of Merger with the Secretary of State of the State of Delaware, Parent or Sub shall deposit (or cause to be deposited) with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration for all shares of Common Stock and the aggregate Preferred Share Merger Consideration for all shares of Series A Convertible Preferred Stock (determined as though there are no Dissenting Company Shares) (such amounts, the “Exchange Fund”). The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of shares of Common Stock and Series A Convertible Preferred Stock and (ii) promptly applied to making the payments provided for in Section 2.1. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by Parent, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, commercial paper obligations receiving the highest rating from either Xxxxx’x Mxxxx’x Investors Service, Inc. or Standard & Poor’s or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a combination thereof, provided that, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be kept in the Exchange Fund until such time as Parent directs that such interest and other income be delivered to ParentFund. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of such funds) that remains undistributed to the holders of shares of Common Stock six months after the Effective Time of the Merger shall be delivered to Parent at such time. Thereafter, holders of shares of Common Stock and Series A Convertible Preferred Stock shall look only to Parent (subject to the terms of this Agreement) as a general creditor for payment of the Merger Consideration or Preferred Share Merger Consideration, as the case may be, without interest, upon the surrender of any Common Stock Certificates or Book Entry Shares held by them.

Surviving Corporation to Provide Funds. At or before Prior to the Closingfiling of the Certificate of Merger with the Secretary of State of the State of Delaware, Parent or Sub shall deposit (or cause to be deposited) with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration for all shares of Common Stock and the aggregate Preferred Share Merger Consideration for all shares of Series A Convertible Preferred Stock (determined as though there are no Dissenting Company Shares) (such amounts, the “Exchange Fund”). The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of shares of Common Stock and Series A Convertible Preferred Stock and (ii) promptly applied to making the payments provided for in Section 2.1. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by ParentXxxxxx, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, commercial paper obligations receiving the highest rating from either Xxxxx’x Investors Service, Inc. or Standard & Poor’s or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a combination thereof, provided that, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be kept in the Exchange Fund until such time as Parent directs that such interest and other income be delivered to ParentFund. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of such funds) that remains undistributed to the holders of shares of Common Stock six months after the Effective Time of the Merger shall be delivered to Parent at such time. Thereafter, holders of shares of Common Stock and Series A Convertible Preferred Stock shall look only to Parent (subject to the terms of this Agreement) as a general creditor for payment of the Merger Consideration or Preferred Share Merger Consideration, as the case may be, without interest, upon the surrender of any Common Stock Certificates or Book Entry Shares held by them.

Surviving Corporation to Provide Funds. At or before Immediately prior to the ClosingEffective Time, Parent or Sub the Surviving Corporation shall deposit (or cause to be deposited) with the Paying Agent cash in an aggregate amount sufficient to so that the Paying Agent may pay the aggregate Merger Consideration for all shares reasonably promptly after surrender of Common Stock and the aggregate Preferred Share Merger Consideration for all shares of Series A Convertible Preferred Stock Certificates (such amounts, the “Exchange Fund”). The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of shares of Common Stock and Series A Convertible Preferred Stock and (ii) promptly applied to making the payments provided for in Section 2.13. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by the Parent, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, commercial paper obligations receiving the highest rating from either Xxxxx’x Mxxxx’x Investors Service, Inc. or Standard & Poor’s or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available), or a combination thereof, provided that, in any such case, no such instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be kept in the Exchange Fund until such time as Parent directs that such interest and other income be delivered to ParentFund. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any portion of the Exchange Fund (including the proceeds of any interest and other income received by the Paying Agent in respect of such funds) that remains undistributed to the holders of shares of Common Stock six nine months after the Effective Time of the Merger shall be delivered to Parent at such time. Thereafter, holders of shares of Common Stock and Series A Convertible Preferred Stock shall look only to Parent (subject to the terms of this Agreement) as a general creditor for payment of the Merger Consideration or Preferred Share Merger Consideration, as the case may be, without interest, upon the surrender of any Common Stock Certificates or Book Entry Shares held by them.