Common use of Expense Amount Clause in Contracts

Expense Amount. Notwithstanding anything to the contrary in this Agreement, Purchaser shall withhold from each Selling Securityholder’s applicable portion of the Cash Consideration payable to such Selling Securityholder pursuant to Section 1.5(a) or 1.5(b), as applicable, such Selling Securityholder’s Pro Rata Share of the Expense Amount. As soon as reasonably practicable after the Closing Date, Purchaser shall cause to be deposited with Equityholders’ Representative the Expense Amount (the aggregate amount of cash so held by the Equityholders’ Representative from time to time, the “Expense Fund”), which Expense Fund shall be held by the Equityholders’ Representative and used solely for the payment of expenses incurred by it in performing its duties in accordance with Section 9.7. At the Closing, each such Selling Securityholder shall be deemed to have contributed to the Expense Fund such Selling Securityholder’s Pro Rata Share of the Expense Fund. For applicable Tax purposes, each Selling Securityholder shall be treated as having received at the Closing his, her or its Pro Rata Share of the Expense Fund. The Selling Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Equityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Equityholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Equityholders’ 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. As soon as practicable following the completion of the Equityholders’ Representative’s responsibilities, the Equityholders’ Representative will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Selling Securityholders.

Expense Amount. Notwithstanding anything At or prior to the contrary in this AgreementEffective Time, Purchaser Buyer shall withhold from each Selling Securityholder’s applicable portion of deposit into an account designated by the Cash Consideration payable to such Selling Securityholder pursuant to Section 1.5(a) or 1.5(b), as applicable, such Selling Securityholder’s Pro Rata Share of the Expense Amount. As soon as reasonably practicable after the Closing Date, Purchaser shall cause to be deposited with EquityholdersStockholders’ Representative the Expense Amount (the aggregate amount of cash so held by the Equityholders“Stockholders’ Representative from time Expense Fund”) an amount equal to time$1,000,000 (such amount, the “Stockholders’ Representative Expense FundAmount”), which . The Stockholders’ Representative Expense Fund shall Amount may be held used at any time by the EquityholdersStockholders’ Representative and used solely for the payment of to fund or reimburse (i) any expenses incurred by it in performing the performance of its duties and obligations hereunder, under the Escrow Agreement, or under the Stockholders’ Representative engagement agreement including those duties and obligations listed in accordance with Section 9.7. At Article XII, or (ii) as otherwise determined by the Closing, each such Selling Securityholder shall be deemed to have contributed to the Expense Fund such Selling Securityholder’s Pro Rata Share of the Expense Fund. For applicable Tax purposes, each Selling Securityholder shall be treated as having received at the Closing his, her or its Pro Rata Share of the Expense FundAdvisory Group. The Selling Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the EquityholdersStockholders’ Representative is not providing any ownership right that they may otherwise investment supervision, recommendations or advice and shall have had in any such interest no responsibility or earnings. The Equityholders’ Representative will not be liable liability for any loss of principal of the Stockholders’ Representative Expense Fund Amount other than as a result of its gross negligence or willful misconduct. The EquityholdersStockholders’ Representative will hold these funds separate from its corporate fundsis not acting as a withholding agent or in any similar capacity in connection with the Stockholders’ Representative Expense Amount, and has no tax reporting or income distribution obligations. The Securityholders will not use these receive any interest on the Stockholders’ Representative Expense Amount and assign to the Stockholders’ Representative any such interest. Subject to Advisory Group approval, the Stockholders’ Representative may contribute funds to the Stockholders’ Representative Expense Amount from any consideration otherwise distributable to the Securityholders. The Stockholders’ Representative Expense Amount will be held by the Stockholders’ Representative for so long as the Stockholders’ Representative determines is reasonably necessary for it to fulfill its operating expenses or any other corporate purposes obligations and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable duties under this Agreement; provided, that following the completion of all such obligations and duties and the Equityholderssatisfaction of all expense reimbursements to which the Stockholders’ Representative’s responsibilitiesRepresentative is entitled in connection therewith, the EquityholdersStockholders’ Representative will deliver any remaining balance shall distribute (or shall cause Paying Agent to distribute) such amount to each Securityholder; and provided, further, that cash amounts payable to Employee Optionholders, with respect to their Employee Options, shall be paid pursuant to the payroll service provider of the Surviving Company or Buyer, as the case may be, in accordance with Section 3.2, each in accordance with such Securityholder’s Pro Rata Share, it being understood and agreed that Buyer and Merger Sub’s sole obligation to the Securityholders with respect to the Stockholders’ Representative Expense Amount shall be Buyer’s obligation to pay the Stockholders’ Representative Expense Amount to the Stockholders’ Representative in accordance with the first sentence of this Section 3.7 and, following such payment, neither Buyer nor Merger Sub shall have any further obligation with respect to payment or delivery of the Stockholders’ Representative Expense Amount to the Securityholders (other than to the Employee Optionholders, with respect to their Employee Options, as set forth in the immediately preceding sentence). The parties agree for all income Tax purposes that the Stockholders’ Representative Expense Fund to shall be treated as having been received and voluntarily set aside by the Exchange Agent for further distribution to Securityholders on the Selling SecurityholdersClosing Date.

Expense Amount. Notwithstanding anything to At the contrary in this AgreementEffective Time, Purchaser Parent shall withhold from each Selling Securityholder’s applicable portion of deposit into an account designated by the Cash Consideration payable to such Selling Securityholder pursuant to Section 1.5(a) or 1.5(b), as applicable, such Selling Securityholder’s Pro Rata Share of the Expense Amount. As soon as reasonably practicable after the Closing Date, Purchaser shall cause to be deposited with EquityholdersSecurityholders’ Representative the Expense Amount (the aggregate amount of cash so held by the Equityholders“Securityholders’ Representative from time Expense Fund”) an amount equal to time$350,000 (such amount, the “Securityholders’ Representative Expense FundAmount”), which . The Securityholders’ Representative Expense Fund shall Amount may be held used at any time by the EquityholdersSecurityholders’ Representative and used solely for the payment of to fund or reimburse (a) any expenses incurred by it in performing the performance of its duties and obligations hereunder (including its obligations under Section 3.5(e)), under the Escrow Agreement, or under the Securityholders’ Representative engagement agreement including those duties and obligations listed in accordance with Section 9.7. At Article XII, or (b) as otherwise determined by the Closing, each such Selling Securityholder shall be deemed to have contributed to the Expense Fund such Selling Securityholder’s Pro Rata Share of the Expense Fund. For applicable Tax purposes, each Selling Securityholder shall be treated as having received at the Closing his, her or its Pro Rata Share of the Expense FundAdvisory Group. The Selling Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the EquityholdersSecurityholders’ Representative is not providing any ownership right that they may otherwise investment supervision, recommendations or advice and shall have had in any such interest no responsibility or earnings. The Equityholders’ Representative will not be liable liability for any loss of principal of the Securityholders’ Representative Expense Fund Amount other than as a result of its gross negligence or willful misconduct. The EquityholdersSecurityholders’ Representative will hold these funds separate from its corporate fundsis 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 Indemnitors will not use these receive any interest on the Securityholders’ Representative Expense Amount and assign to the Securityholders’ Representative any such interest. Subject to Advisory Group approval, the Securityholders’ Representative may contribute funds to the Securityholders’ Representative Expense Amount from any consideration otherwise distributable to the Indemnitors from the Escrow Funds. The Securityholders’ Representative Expense Amount will be held by the Securityholders’ Representative for so long as the Securityholders’ Representative determines is reasonably necessary for it to fulfill its operating expenses or any other corporate purposes obligations and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable duties under this Agreement; provided, that following the completion of all such obligations and duties and the Equityholderssatisfaction of all expense reimbursements to which the Securityholders’ Representative’s responsibilitiesRepresentative is entitled in connection therewith, the EquityholdersSecurityholders’ Representative will deliver any remaining balance of shall distribute such amount to (i) the Expense Fund to the Exchange Paying Agent for further distribution to the Selling Shareholders and Optionholders in respect of the Non-Withholding Options and (ii) the Surviving Corporation for distribution to the Optionholders in respect of the In the Money Vested Options (other than the Non-Withholding Options), each in accordance with such Indemnitor’s Pro Rata Share, it being understood and agreed that Parent and Merger Sub’s sole obligation to the Indemnitors with respect to the Securityholders’ Representative Expense Amount shall be Parent’s obligation to pay the Securityholders’ Representative Expense Amount to the Securityholders’ Representative in accordance with the first sentence of this Section 3.6 and, following such payment, neither Parent nor Merger Sub shall have any further obligation with respect to payment or delivery of the Securityholders’ Representative Expense Amount to the Indemnitors (other than to the Optionholders as set forth in clause (ii) of this sentence, but subject to the receipt of the necessary funds from the Securityholders’ Representative).