Common use of Expense Fund Clause in Contracts

Expense Fund. At the Closing, Acquiror shall retain and hold back an amount in cash equal to each Stockholder’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two Business Days prior to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, and the Expense Fund Amount shall be used, solely by the Securityholder Representative to pay any fees, costs or other expenses it may incur in performing its duties or exercising its rights under this Agreement or the Securityholder Representative Engagement Agreement. The Expense Fund shall be treated as received and deposited by the applicable Securityholders at Closing for Tax purposes and be held for the benefit of such Securityholders. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) in accordance with their respective Pro Rata Portions. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount, and has no tax reporting or income distribution obligations hereunder.

Expense Fund. At Notwithstanding anything to the contrary set forth herein, at the Closing, Acquiror Buyer shall retain and hold back an withhold from the cash amount in cash equal otherwise payable to each StockholderCompany Securityholder pursuant to Section 2.6(b), Section 2.6(c) and/or Section 2.6(d)(i) such Company Securityholder’s and holder of Vested Company Options’ Pro Rata Portion Share of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two Business Days prior and will wire to the Closing Date Securityholders’ Representative $150,000 (the “Expense Fund”), and, upon such deposit, Acquiror shall which will be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, and the Expense Fund Amount shall be used, solely held by the Securityholder Securityholders’ Representative to pay any fees, costs or other expenses it may incur in performing its duties or exercising its rights under this Agreement or the Securityholder Representative Engagement Agreement. The Expense Fund shall be treated as received agent and deposited by the applicable Securityholders at Closing for Tax purposes and be held for the benefit of such the Company Securityholders in a segregated client account and which will be used: (i) for the purposes of paying directly, or reimbursing the Securityholders’ Representative for, any Securityholders’ Representative Expenses, as defined herein, pursuant to this Agreement, the Escrow Agreement or the Securityholders’ Representative Engagement Agreement or (ii) as otherwise determined by the Advisory Group. The Securityholder Securityholders’ Representative will hold these funds separately the Expense Fund separate from its corporate funds and will not voluntarily make these funds it available to its creditors in the event of bankruptcy. The applicable Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such The Securityholders) in accordance with their respective Pro Rata Portions. The Securityholder ’ Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud negligence or willful misconduct. Subject to Advisory Group approval, the Securityholders’ Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Company Securityholders. As soon as practicable following the completion of the Securityholders’ Representative’s responsibilities, the Securityholders’ Representative will deliver the remaining balance of the Expense Fund to the Exchange Agent, and in the case of holders of Vested Company Options who are subject to income or employment Tax withholding by Buyer, to the Final Surviving Entity, for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. For income tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at Closing. The Securityholder Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund AmountFund, and has no tax reporting or income distribution obligations hereunderhereunder except as required by applicable Law.

Expense Fund. At In furtherance of the Closingforegoing, Acquiror shall retain each Indemnitor authorizes Parent to withhold, or cause to be withheld, and hold back deliver to the Securityholders’ Representative, an aggregate amount in of cash equal to $500,000 (the “Expense Fund Amount”) from the amounts otherwise payable by Parent to the Indemnitors pursuant to Section 1.5, as applicable, with each StockholderIndemnitor contributing an amount equal to such Indemnitor’s and holder of Vested Company Options’ Pro Rata Portion Share of the Expense Fund Amount from the cash consideration otherwise payable (such funds being referred to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two Business Days prior to the Closing Date (as the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of . The Indemnitors agree that the Expense Fund Amount. The Expense Fund shall will be accessedused for the purposes of paying directly, or reimbursing the Securityholders’ Representative for, any fees and expenses incurred in the Expense Fund Amount shall be used, solely by the Securityholder Representative to pay any fees, costs or other expenses it may incur in performing performance of its duties or exercising its rights under pursuant to this Agreement or the Securityholder Representative Engagement Agreement. The Expense Fund shall be treated as received and deposited by the applicable Securityholders at Closing for Tax purposes and be held for the benefit of such Securityholders. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders Indemnitors will not receive any interest or earnings on the Expense Fund and hereby irrevocably transfer and assign to the Securityholder Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of The Indemnitors agree that the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) in accordance with their respective Pro Rata Portions. The Securityholder ’ Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud faith or willful misconduct. The Securityholder Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with will hold the Expense Fund Amountseparate from its own funds, will not use the Expense Fund for its own corporate purposes and has no tax reporting or income will not voluntarily make the Expense Fund available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholders’ Representative responsibilities, the Securityholders’ Representative will deliver the balance of the Expense Fund to the Paying Agent for further distribution obligations hereunderto the Indemnitors in accordance with their respective Pro Rata Shares. For applicable Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Indemnitors at the time of the Closing and any Tax withholding required with respect of an Indemnitor’s deemed receipt of its pro rata portion of the Expense Fund on the Closing Date shall be satisfied from such Indemnitor’s share of total consideration received at Closing and shall not reduce the amount of the Expense Fund. Notwithstanding anything to the contrary contained in this Agreement, Section 10.6(j) shall apply mutatis mutandis to any amounts to be released by the Securityholders’ Representative from the Expense Fund.

Expense Fund. At the Closing, Acquiror shall retain As soon as reasonably practicable (and hold back an amount in cash equal to each Stockholder’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after any event within one (1) Business Day) following the Closing, Acquiror shall deposit, or cause to be deposited, with by wire transfer of immediately available funds, two hundred fifty thousand dollars ($250,000) (the Securityholder Representative the “Expense Fund Amount Amount”) into an a segregated account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two one (1) Business Days Day prior to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, and the Expense Fund Amount shall be used, solely by the Securityholder Representative (1) to pay any fees, costs or other expenses Securityholder Representative Expenses it may incur in performing its duties or exercising its rights under this Agreement Agreement, any Related Agreement, or the Securityholder Representative Engagement AgreementAgreement and (2) as otherwise directed by the Advisory Group. The Expense Fund shall be treated as received and deposited by the applicable Securityholders at Closing for Tax purposes and be held as a trust fund for the benefit of such Securityholders. The Securityholder Representative will hold these funds separately from its corporate funds the Securityholders and will shall not voluntarily make these funds available be subject to its creditors in the event any lien, attachment, trustee process or any other judicial process of bankruptcy. The applicable Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative creditor of any ownership right that they may otherwise have had in any such interest or earningsPerson. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse deliver any amounts then-remaining in the Expense Fund (such amount as may be reduced pursuant to Section 10.2, the “Expense Fund Release Amount”) to the applicable Securityholders (or to Payment Agent on behalf of the Exchange Agent or other Person, if so designated by Acquiror, on their behalfSecurityholders, and who will thereafter distribute the Expense Fund Release Amount Amount, as appropriate, to the Securityholders and, with respect to any portion thereof payable to Withholding Securityholders, to the applicable payroll processor for further distribution to such Withholding Securityholders) , in each case, in accordance with their respective Pro Rata Portionsaggregate Per Share Expense Fund Release Amount. Notwithstanding anything herein to the contrary, the aggregate amount of cash to be distributed at any particular time to any Securityholder in accordance with this Section 2.3(d)(iii) shall be rounded down to the nearest whole cent. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable to the Securityholders for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount, and has no tax reporting or income distribution obligations hereunder. The Securityholders will not receive any interest on the Expense Fund and assign to the Securityholder Representative any such interest. The Securityholder Representative may direct the contribution of funds to the Expense Fund from any consideration otherwise distributable to the Securityholders in accordance with the terms of this Agreement, and, notwithstanding anything herein to the contrary, Acquiror’s obligations to make payment of all or any portion of the Expense Fund Amount shall be fully satisfied upon deposit of the Expense Fund Amount in the Expense Fund.

Expense Fund. At On the ClosingClosing Date, Acquiror Parent shall retain and hold back an amount deposit twenty five thousand dollars ($25,000) (the “Expense Fund Amount”) in cash equal to each Stockholder’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration Total Cash Consideration otherwise payable to such Person the Indemnifying Parties pursuant to Section 1.3(b). At or promptly after 1.6(b)(i) into a segregated client account (the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the “Expense Fund Amount into an account Fund”) designated by the Securityholder Shareholder Representative in a written notice delivered to Acquiror Purchaser at least two Business Days five (5) days prior to the Closing Date (Date. Upon deposit of the “Expense Fund”)Fund with the Shareholder Representative in accordance with the foregoing sentence, and, upon such deposit, Acquiror Parent shall be deemed to have contributed to the Expense Fund, on behalf of withheld from each such Securityholder, his, her, or Indemnifying Party its Pro Rata Portion of the Expense Fund Amountfrom the cash that otherwise would be payable upon the First Effective Time to such Indemnifying Party pursuant to Section 1.6(b)(i), and contributed on behalf of such Indemnifying Party its Pro Rata Portion of the Expense Fund to the Shareholder Representative. The Expense Fund shall is established solely to be accessed, and the Expense Fund Amount shall be used, solely used by the Securityholder Shareholder Representative to pay any fees, costs or other expenses it may incur in performing its duties or exercising its rights under this Agreement Agreement, any agreement ancillary hereto or the Securityholder any Shareholder Representative Engagement Agreementengagement agreement. The Expense Fund shall be treated as received and deposited by the applicable Securityholders at Closing for Tax purposes and be held for the benefit of such Securityholders. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder The Shareholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) in accordance with their respective Pro Rata Portions. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud negligence or willful misconduct. The Securityholder Shareholder Representative is will hold these funds separate from its corporate funds, will not acting 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. Contemporaneous with or as a withholding agent or in any similar capacity in connection with soon as practicable following the completion of the Shareholder Representative’s duties, the Shareholder Representative will deliver the balance of the Expense Fund Amountto the Exchange Agent for further distribution to the Indemnifying Parties. For Tax purposes, the Expense Fund will be treated as having been received and has no tax reporting or income distribution obligations hereundervoluntarily set aside by each Indemnifying Party at the time of Closing.

Expense Fund. At the ClosingEffective Time, Acquiror shall retain by virtue of the Merger, and hold back without any action on the part of Acquiror, Merger Sub, the Company, the Company Securityholders, or the Securityholder Representative, an amount in cash equal to each StockholderCompany Preferred Holder’s and holder of Vested Company Options’ Closing Pro Rata Portion of the Expense Fund Amount shall be withheld from the cash consideration otherwise payable to such Person Company Preferred Holder pursuant to Section 1.3(bSections 1.8(a), 1.8(b), and 1.8(c). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with by wire transfer of immediately available funds, four hundred thousand dollars ($400,000) (the Securityholder Representative the “Expense Fund Amount Amount”) into an account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two (2) Business Days prior to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each Company Preferred Holder, an amount equal to such Securityholder, his, her, or its Company Preferred Holder’s Closing Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, and the Expense Fund Amount shall be used, solely by the Securityholder Representative to pay directly, or reimburse the Securityholder Representative for, any fees, costs or other expenses it may incur in performing its duties or exercising its rights under this Agreement, any Company Related Agreement or the any Securityholder Representative Engagement Agreementengagement agreement. The Expense Fund shall be treated as received and deposited by the applicable Securityholders Company Preferred Holders at Closing for Tax purposes and shall not be held for the benefit subject to any lien, attachment, trustee process or any other judicial process of such Securityholdersany creditor of any Person. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders Company Preferred Holders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or Exchange Administrator for further distribution to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) Company Preferred Holders in accordance with their respective Closing Pro Rata PortionsPortion. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount, and has no tax reporting or income distribution obligations hereunder.

Expense Fund. At the Closing, Acquiror Parent shall retain and hold back an amount in cash equal to each Stockholder’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror Parent shall deposit, or cause to be deposited, with the Securityholder Stockholder Representative the Expense Fund Amount into an account designated by the Securityholder Stockholder Representative in a written notice delivered to Acquiror Parent at least two five (5) Business Days prior to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror Parent shall be deemed to have contributed to the Expense Fund, on behalf of each such SecurityholderStockholder, his, her, or its Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, and the Expense Fund Amount shall be used, solely by the Securityholder Stockholder Representative to pay any fees, costs or other expenses it may incur in performing its duties or exercising its rights under this Agreement Agreement, any Related Agreement, or the Securityholder Stockholder Representative Engagement Agreement. The Expense Fund shall be treated as received and deposited by the applicable Securityholders Stockholders at Closing for Tax purposes and be held as a trust fund for the benefit of such Securityholdersthe Stockholders and shall not be subject to any Lien, attachment, trustee process or any other judicial process of any creditor of any Person. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Stockholder Representative’s duties hereunder, the Securityholder Stockholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders Stockholders (or to the Exchange Agent or other Person, if so designated by AcquirorParent, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholdersthe Stockholders) in accordance with their respective Pro Rata Portions. The Securityholder Stockholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud or willful misconduct. The Securityholder Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount, and has no tax reporting or income distribution obligations hereunder.

Expense Fund. At the Closing, Acquiror Parent shall retain and hold back an amount in cash equal to each Stockholder’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two Business Days prior wire to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of Securityholders’ Representative the Expense Fund Amount. The Expense Fund Amount shall be accessedheld by the Securityholders’ Representative in a segregated account (the “Expense Fund”) and shall be used solely for (i) the purposes of paying directly or reimbursing the Securityholders’ Representative for any Representative Expenses incurred pursuant to this Agreement or (ii) paying directly, or reimbursing the Securityholders’ Representative for, any third party expenses pursuant to this Agreement and the Ancillary Agreements. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice to any Company Securityholder and shall have no responsibility or liability to any Company Securityholder for any loss of principal of the Expense Fund Amount shall be used, solely by other than as a result of the Securityholder Representative to pay any fees, costs Securityholders’ Representative’s gross negligence or other expenses it may incur in performing its duties or exercising its rights under this Agreement or the Securityholder Representative Engagement Agreementwillful misconduct. The Expense Fund shall be treated as received and deposited by the applicable Securityholders at Closing for Tax purposes and be held for the benefit of such Securityholders. The Securityholder ’ Representative will hold these funds separately separate from its corporate person funds, will not use these funds for any personal purposes, and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of As soon as reasonably determined by the Securityholder Representative’s duties hereunderSecurityholders’ Representative that the Expense Fund is no longer required to be withheld, the Securityholder Securityholders’ Representative shall disburse distribute any amounts then-amount remaining in the Expense Fund (the “Expense Fund Release AmountProceeds”) to the applicable Securityholders (or to the Exchange Agent or other PersonParent and, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) in accordance with their respective Pro Rata Portions. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal promptly following Parent’s receipt of the Expense Fund Amount other than as a result of Proceeds, Parent shall, in its gross negligencesole discretion, bad faith, fraud or willful misconduct. The Securityholder Representative is not acting as a withholding agent cause the Exchange Agent to pay to (i) each Participating Holder an amount in cash or in any similar capacity Parent Shares, or a combination thereof, equal to their respective Expense Fund Payment Amount, and (ii) each Non-Participating Holder, an amount in connection with cash equal to such Non-Participating Holder’s Expense Fund Payment Amount (provided, that Parent must grant Parent Common Stock if necessary to preserve the tax-free nature of the Mergers under Section 368(a)(1)(A)), and provided, further, that Parent may only make payments in Parent Common Stock if, at the time the payment is made, (i) the Parent Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act and (ii) Parent has made all filings it is required to make under the Exchange Act during the prior twelve months). For tax purposes, the Expense Fund Amount, will be treated as having been received and has no tax reporting or income distribution obligations hereundervoluntarily set aside by the Company Securityholders at the time of Closing.

Expense Fund. At the Closing, Acquiror shall retain and hold back an amount in cash equal to each Stockholder’s and holder of Vested Company OptionsThe Stockholders’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Representative in a written notice delivered to Acquiror at least two Business Days prior to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, and the Expense Fund Amount shall be used, solely used to fund any Stockholders’ Representative expenses incurred by the Securityholder Stockholders’ Representative to pay any fees, costs or other expenses it may incur in performing the performance of its duties or exercising its rights under this Agreement or the Securityholder Representative Engagement Agreementand obligations hereunder. The Expense Fund shall be treated as received and deposited by the applicable Securityholders at Closing for Tax purposes and be held for the benefit of such Securityholders. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) in accordance with their respective Pro Rata Portions. The Securityholder Stockholders’ Representative is not providing any investment supervision, recommendations or advice and will not be liable shall have no responsibility or liability for any loss of principal of the Stockholders’ Expense Fund Amount other than as a result of its gross negligencewillful misconduct, bad faith, fraud gross negligence or willful misconductfraud. The Securityholder Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholders’ Expense Fund Amount, and has no tax reporting or income distribution obligations hereunderobligations. The Company Securityholders are not entitled to any interest on the Stockholders’ Expense Fund Amount. The Stockholders’ Representative may contribute funds to the Stockholders’ Expense Fund Amount from any consideration otherwise distributable to the Company Securityholders. The Stockholders’ Expense Fund Amount will be held by the Stockholders’ Representative until such time as the Stockholders’ Representative determines, in its sole discretion, that the Securityholders shall have no further expenses to be incurred in connection with the transactions contemplated by this Agreement. Any portion of the Stockholders’ Expense Fund Amount remaining after such date shall be paid by the Stockholders’ Representative to the Paying Agent for further distribution to the Company Securityholders, with each receiving its Pro Rata Share of such remaining amounts; provided that the amount payable in respect of Company Options shall be paid through the Surviving Corporation’s payroll. For all Tax purposes, the Parties agree that the Stockholders’ Expense Fund shall be treated as having been received, including through the Surviving Corporation’s payroll, as applicable, and voluntarily set aside by Company Securityholders at the time of Closing (and any Tax withholding with respect to such deemed receipt by any Company Securityholders shall be satisfied from the portion of the Merger Consideration paid to such Company Securityholder at Closing before reducing the Stockholders’ Expense Fund).

Expense Fund. At the Closing, (a) Acquiror shall retain and hold back holdback an amount in cash equal to each StockholderIndemnifying Party’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the ClosingIndemnifying Party, and (b) Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Representative and set forth in a written notice delivered to Acquiror at least two Business Days prior to the Closing Date Payment Spreadsheet (the “Expense Fund”), and, upon such deposit, Acquiror shall be deemed to have contributed to the Expense Fund, on behalf of each such SecurityholderIndemnifying Party, his, her, or its Pro Rata Portion of the Expense Fund Amount. The Expense Fund shall be accessed, held by the Securityholder Representative in a segregated account and the Expense Fund Amount shall be used, used (i) solely by the Securityholder Representative to pay for the purposes of paying directly or reimbursing the Securityholder Representative for any fees, costs or other expenses Securityholder Representative Expenses it may incur in performing its duties or exercising its rights under this Agreement Agreement, any Related Agreement, or the Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. The Expense Fund shall be treated as received and deposited by the applicable Securityholders Indemnifying Parties at Closing for Tax purposes (except to the extent otherwise required by applicable Law) and be held as a trust fund for the benefit of such Securityholdersthe Indemnifying Parties and shall not be subject to any Lien, attachment, trustee process or any other judicial process of any creditor of any Person. The Securityholder Representative will hold these funds separately from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders Paying Agent (or to the Exchange Agent or other Person, if so designated by AcquirorAcquiror and the Securityholder Representative, on their behalfthe behalf of the Indemnifying Parties, and who will thereafter distribute the Expense Fund Release Amount to such Securityholdersthe Indemnifying Parties) in accordance with their respective Pro Rata Portions. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity for Tax purposes in connection with the Expense Fund Amount, and has no tax Tax reporting or income distribution obligations hereunder. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Parties.

Expense Fund. At the Closing, Acquiror the Company shall retain and hold back deposit cash in an amount in cash equal to each Stockholder’s and holder of Vested Company Options’ Pro Rata Portion of the Expense Fund Amount from the cash consideration otherwise payable to such Person pursuant to Section 1.3(b). At or promptly after the Closing, Acquiror shall deposit, or cause to be deposited, with the Securityholder Representative the Expense Fund Amount into an account designated by the Securityholder Stockholder Representative in a written notice delivered to Acquiror at least two Business Days prior to the Closing Date (the “Expense Fund”), and, upon such deposit, Acquiror . Such amount shall be deemed to have contributed to the Expense Fund, on behalf of each such Securityholder, his, her, or its Pro Rata Portion of the Expense Fund Amounta Third Party Expense. The Expense Fund shall be accessed, used to fund any expenses incurred by the Stockholder Representative in the performance of its duties and the obligations hereunder. The Expense Fund Amount shall will be used, solely held by the Securityholder Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to pay any fees, costs or other expenses it may incur be incurred in performing its duties or exercising its rights under this Agreement or connection with the Securityholder Representative Engagement AgreementTransactions. The Expense Fund shall be treated as received and deposited held by the applicable Securityholders at Closing for Tax purposes Stockholder Representative as agent and be held for the benefit of such Securityholdersthe Company Stockholders in a segregated client bank account. The Securityholder Stockholder Representative will hold these funds separately separate from its corporate personal funds, will not use these funds for its operating expenses or any other personal purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The applicable Securityholders will Company Stockholders shall not receive any interest or other earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall disburse any amounts then-remaining in the Expense Fund (the “Expense Fund Release Amount”) to the applicable Securityholders (or to the Exchange Agent or other Person, if so designated by Acquiror, on their behalf, and who will thereafter distribute the Expense Fund Release Amount to such Securityholders) in accordance with their respective Pro Rata Portionsshall be deposited into a non-interest bearing account. The Securityholder Company Stockholders acknowledge that the Stockholder Representative is not providing any investment supervision, recommendations or advice and will not be liable advice. The Stockholder Representative shall have no responsibility or liability for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence, bad faith, fraud negligence or willful misconduct. The Securityholder At such time as the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with determines to release the Expense Fund, the Stockholder Representative shall deliver the balance of the Expense Fund Amountto Parent or the Exchange Agent for distribution to the Company Stockholders, with each Company Stockholder receiving its allocation of such balance in accordance with this Agreement as follows: (i) if the Aggregate Company Preferred Stock Preference Amount has not yet been satisfied, as additional Preferred Consideration pursuant to clause (i) of the definition thereof, with such changes as are necessary to reflect that such payment shall be made in the form of cash, and (ii) if the Aggregate Company Preferred Stock Preference Amount has been satisfied, as additional Common Consideration, with such changes as are necessary to reflect that such payment shall be made in the form of cash (provided, for the avoidance of doubt, that in no tax reporting or income distribution obligations hereunderevent shall the holders of Company Preferred Stock receive in the aggregate an amount of Aggregate Consideration in excess of the Aggregate Company Preferred Stock Preference Amount pursuant to this sentence). For applicable Tax purposes, the Expense Fund shall be treated as having been received and voluntary set aside by the Company Stockholders at the time of the Closing.