Common use of Expense Fund Clause in Contracts

Expense Fund. At the Closing, the Company shall deposit cash in an amount equal to the Expense Fund Amount into an account designated by the Stockholder Representative (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall be used to fund any expenses incurred by the Stockholder Representative in the performance of its duties and obligations hereunder. The Expense Fund will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund shall be held by the Stockholder Representative as agent and for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Representative will hold these funds separate from its 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 Company Stockholders shall not receive interest or other earnings on the Expense Fund and the Expense Fund shall be deposited into a non-interest bearing account. The Company Stockholders acknowledge that the Stockholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. At such time as the Stockholder Representative determines to release the Expense Fund, the Stockholder Representative shall deliver the balance of the Expense Fund to 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 event 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.

Expense Fund. At Upon the Closing, the Company Purchaser shall deposit cash in an amount equal wire to the Equityholder Representative $150,000 (the “Expense Fund Amount”). The Expense Fund Amount into an account designated shall be held by the Stockholder Equityholder Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Equityholder Representative for any Representative Expenses incurred pursuant to this Agreement or any Representative Engagement Agreement, or (ii) as otherwise determined by the Representative Group (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall be used to fund any expenses incurred by the Stockholder Representative in the performance of its duties and obligations hereunder. The Expense Fund will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund shall be held by the Stockholder Representative as agent and for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Representative will hold these funds separate from its 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 Company Stockholders shall not receive interest or other earnings on the Expense Fund and the Expense Fund shall be deposited into a non-interest bearing account. The Company Stockholders acknowledge that the Stockholder Equityholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. At such time The Equityholder Representative is not acting as the Stockholder Representative determines to release a withholding agent or in any similar capacity in connection with the Expense Fund, the Stockholder Representative shall deliver the balance of and has no tax reporting or income distribution obligations. The Equityholders will not receive any interest on the Expense Fund and assign to Parent or the Exchange Equityholder Representative any such interest. Subject to Representative Group approval, the Equityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Equityholders. As soon as reasonably determined by the Equityholder Representative that the Expense Fund is no longer required to be withheld, the Equityholder Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent for further distribution to the Company Stockholders, with each Company Stockholder receiving its allocation of Equityholders; provided that the party making 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 distribution 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 entitled to reflect that such payment shall be made in the form of cash (provided, deduct a reasonable fee for the avoidance cost of doubt, that in no event 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)processing such payment. For applicable Tax tax purposes, the Expense Fund Amount shall be treated as having been received and voluntary voluntarily set aside by the Company Stockholders Equityholders at the time of Closing. Any Tax required to be withheld with respect to the Closingdeemed payment to an Equityholder of its portion of the Expense Fund Amount shall reduce the amount of cash payable to such Equityholder at Closing and shall not reduce the Expense Fund.

Expense Fund. At the Closing, Parent shall wire to the Company shall deposit cash in an amount equal to Securityholders’ Representative the Expense Fund Amount. The Expense Fund Amount into an account designated shall be held by the Stockholder Securityholders’ Representative in a segregated account (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. 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 fund this Agreement or (ii) paying directly, or reimbursing the Securityholders’ Representative for, any third party expenses incurred by pursuant to this Agreement and the Stockholder Representative in the performance of its duties and obligations hereunderAncillary Agreements. The Expense Fund will be held by the Stockholder Securityholders’ Representative until such time as the Stockholder Representative determinesis not providing any investment supervision, in its sole discretion, that the recommendations or advice to any Company Stockholders Securityholder and shall have no further expenses responsibility or liability to be incurred in connection with any Company Securityholder for any loss of principal of the TransactionsExpense Fund other than as a result of the Securityholders’ Representative’s gross negligence or willful misconduct. The Expense Fund shall be held by the Stockholder Representative as agent and for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Securityholders’ Representative will hold these funds separate from its personal person funds, will not use these funds for its operating expenses or any other personal purposes purposes, and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The 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 Stockholders shall Securityholders will not receive any interest or other earnings on the Expense Fund and irrevocably transfer and assign to the Securityholders’ Representative any such interest or earnings. As soon as reasonably determined by the Securityholders’ Representative that the Expense Fund shall is no longer required to be deposited into a non-interest bearing account. The Company Stockholders acknowledge that withheld, the Stockholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Securityholders’ Representative shall have no responsibility or liability for distribute any loss of principal amount remaining in the Expense Fund (the “Expense Fund Proceeds”) to Parent and, promptly following Parent’s receipt of the Expense Fund other than as a result of Proceeds, Parent shall, in its gross negligence or willful misconduct. At such time as the Stockholder Representative determines to release the Expense Fundsole discretion, the Stockholder Representative shall deliver the balance of the Expense Fund to Parent or cause 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: pay to (i) if the Aggregate Company Preferred Stock Preference Amount has not yet been satisfiedeach Participating Holder an amount in cash or in Parent Shares, as additional Preferred Consideration pursuant to clause (i) of the definition or a combination thereof, with such changes as are necessary equal to reflect that such payment shall be made in the form of cashtheir respective Expense Fund Payment Amount, and (ii) if the Aggregate Company Preferred Stock Preference each Non-Participating Holder, an amount in cash equal to such Non-Participating Holder’s Expense Fund Payment 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 that Parent must grant Parent Common Stock if necessary to preserve the avoidance tax-free nature of doubtthe Mergers under Section 368(a)(1)(A)), and provided, further, that Parent may only make payments in no event shall Parent Common Stock if, at the holders of Company Preferred time the payment is made, (i) the Parent Common Stock receive in the aggregate an amount of Aggregate Consideration in excess is registered under Section 12(b) or 12(g) of the Aggregate Company Preferred Stock Preference Amount pursuant Exchange Act and (ii) Parent has made all filings it is required to this sentencemake under the Exchange Act during the prior twelve months). For applicable Tax tax purposes, the Expense Fund shall will be treated as having been received and voluntary voluntarily set aside by the Company Stockholders Securityholders at the time of the Closing.

Expense Fund. At On the ClosingClosing Date, the Company Parent shall deposit cash in an amount equal to the Expense Fund Distribution Amount into an account designated by in immediately available funds with the Stockholder Representative (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall Securityholders’ Representative, to be used to fund (i) for paying directly or reimbursing the Securityholders’ Representative for any expenses incurred by it arising from its obligations hereunder or under the Stockholder Representative in Escrow Agreement or (ii) as otherwise directed by the performance of its duties and obligations hereunderAdvisory Group. The Expense Fund will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund shall be held by the Stockholder Representative as agent and for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Representative will hold these funds separate from its 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 Company Stockholders shall not receive interest or other earnings on the Expense Fund and the Expense Fund shall be deposited into a non-interest bearing account. The Company Stockholders acknowledge that the Stockholder Securityholders’ Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative advice and shall have no responsibility or liability for any loss of principal of the Expense Fund Distribution Amount other than as a result of its gross negligence or willful misconduct. At The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Distribution Amount and has no tax reporting or income distribution obligations. The Company Stakeholders will not receive any interest on the Expense Fund Distribution Amount and assign to the Securityholders’ Representative any such interest. Subject to Advisory Group approval, the Securityholders’ Representative may contribute funds to the Expense Fund Distribution Amount from any consideration otherwise distributable to the Company Stakeholders. The Expense Fund Distribution Amount shall be retained in whole or in part by or on behalf of the Company Stakeholders until such time as the Stockholder Representative determines to release the Expense Fund, the Stockholder Securityholders’ Representative shall deliver determine in its sole discretion, at which time the balance of Securityholders’ Representative shall promptly distribute the remaining Expense Fund Distribution Amount to Parent the Paying Agent or the Exchange Agent Surviving Corporation, as applicable, for distribution to the Company Stockholders, with each Company Stockholder receiving its allocation of such balance Stakeholders 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 event 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 Closingterms hereunder.

Expense Fund. At the Closing, the Company shall deposit cash in an amount equal to the The Stockholders’ Expense Fund Amount into an account designated by the Stockholder Representative (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall be used to fund any Stockholders’ Representative expenses incurred by the Stockholder Stockholders’ Representative in the performance of its duties and obligations hereunder. The Expense Fund will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund shall be held by the Stockholder Representative as agent and for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Representative will hold these funds separate from its 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 Company Stockholders shall not receive interest or other earnings on the Expense Fund and the Expense Fund shall be deposited into a non-interest bearing account. The Company Stockholders acknowledge that the Stockholder Stockholders’ Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative advice and shall have no responsibility or liability for any loss of principal of the Stockholders’ Expense Fund Amount other than as a result of its willful misconduct, bad faith, gross negligence or willful misconductfraud. At The 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. 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 Stockholder Stockholders’ Representative determines determines, in its sole discretion, that the Securityholders shall have no further expenses to release be incurred in connection with the Expense Fund, the Stockholder Representative shall deliver the balance 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 Parent or the Exchange Paying Agent for further distribution to the Company StockholdersSecurityholders, with each Company Stockholder receiving its allocation Pro Rata Share of such balance remaining amounts; provided that the amount payable in accordance with this Agreement as follows: (i) if the Aggregate respect of 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 Options shall be made in paid through 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 event 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)Surviving Corporation’s payroll. For applicable all Tax purposes, the Parties agree that the Stockholders’ Expense Fund shall be treated as having been received received, including through the Surviving Corporation’s payroll, as applicable, and voluntary voluntarily set aside by the Company Stockholders 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 Closingportion of the Merger Consideration paid to such Company Securityholder at Closing before reducing the Stockholders’ Expense Fund).

Expense Fund. At the Closing, the Company shall deposit cash in an amount equal to the Expense Fund Amount into an account designated by the Stockholder Representative (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall be used to fund any expenses incurred by the Stockholder Representative in the performance of its duties and obligations hereunder. The Expense Fund will be held used (a) for the purposes of paying directly, or reimbursing Agent for, any third party expenses pursuant to this Agreement and the Transaction Agreements or (b) as otherwise directed by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the TransactionsAdvisory Group. The Expense Fund shall be held by the Stockholder Representative as agent and for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Representative will hold these funds separate from its personal funds, Equityholders will not use these funds for its operating expenses or receive any other personal purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Company Stockholders shall not receive interest or other earnings on the Expense Fund and the Expense Fund shall be deposited into a non-irrevocably transfer and assign to Agent any ownership right that they may otherwise have had in any such interest bearing accountor earnings. The Company Stockholders acknowledge that the Stockholder Representative Agent is not providing any investment supervision, recommendations or advice. The Stockholder Representative shall have no responsibility or liability advice and 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. At such time Agent will hold these funds separate from its corporate funds, will not use these funds for its operating expenses and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the Stockholder Representative determines to release the Expense Fundcompletion of Agent’s responsibilities, the Stockholder Representative Agent shall deliver the disburse any remaining balance of the Expense Fund to Parent or the Exchange Paying Agent for further distribution to the Company StockholdersStockholders and Warrantholders the amount payable to the Stockholders and Warrantholders by means of a wire transfer of immediately available funds and pay to the Company’s payroll provider the amount of the Expense Fund payable to holders of Vested Options directly and instruct such payroll provider to deliver such payments to the holders of Vested Option in the next regularly scheduled payroll of the Surviving Corporation, with each Company Stockholder receiving its allocation of such balance in accordance with this Agreement such Equityholder’s Percentage as follows: (i) if set forth on 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 event 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)Payment Schedule. For applicable Tax tax purposes, the Expense Fund shall be treated as having been received and voluntary voluntarily set aside by the Company Stockholders Equityholders at the time of Closing. Agent is not acting as a withholding agent or in any similar capacity in connection with the ClosingExpense Fund and is not responsible for any tax reporting or withholding with respect thereto. Subject to Advisory Group approval, Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Equityholders.

Expense Fund. At As soon as reasonably practicable (and in any event within one (1) Business Day) following the Closing, Acquiror shall deposit, or cause to be deposited, by wire transfer of immediately available funds, two hundred fifty thousand dollars ($250,000) (the Company shall deposit cash in an amount equal to the “Expense Fund Amount Amount”) into an a segregated account designated by the Stockholder Securityholder Representative in a written notice delivered to Acquiror at least one (1) Business Day prior to the Closing Date (the “Expense Fund”). Such amount The Expense Fund shall be deemed a Third Party Expenseaccessed, and the Expense Fund Amount shall be used, solely by the Securityholder Representative (1) to pay any Securityholder Representative Expenses it may incur in performing its duties or exercising its rights under this Agreement, any Related Agreement, or the Securityholder Representative Engagement Agreement and (2) as otherwise directed by the Advisory Group. The Expense Fund shall be used to fund any expenses incurred treated as received and deposited by the Stockholder Representative in the performance of its duties Securityholders at Closing for Tax purposes and obligations hereunder. The Expense Fund will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund shall be held by the Stockholder Representative as agent and a trust fund for the benefit of the Company Stockholders in a segregated client bank account. The Stockholder Representative will hold these funds separate from its personal fundsSecurityholders and shall not be subject to any lien, will not use these funds for its operating expenses attachment, trustee process or any other personal purposes and will not voluntarily make these funds available to its creditors judicial process of any creditor of any Person. Upon conclusion of the Securityholder Representative’s duties hereunder, the Securityholder Representative shall deliver any amounts then-remaining in the event of bankruptcy. The Company Stockholders shall not receive interest or other earnings on the Expense Fund (such amount as may be reduced pursuant to Section 10.2, the “Expense Fund Release Amount”) to the Payment Agent on behalf of the Securityholders, and who will thereafter distribute the Expense Fund Release 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 aggregate 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 deposited into a non-interest bearing accountrounded down to the nearest whole cent. The Company Stockholders acknowledge that the Stockholder Securityholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative shall have no responsibility or liability 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 negligence, bad faith, fraud or willful misconduct. At such time The Securityholder Representative is not acting as the Stockholder Representative determines to release a withholding agent or in any similar capacity in connection with the Expense FundFund Amount, and has no tax reporting or income distribution obligations hereunder. The Securityholders will not receive any interest on the Stockholder Expense Fund and assign to the Securityholder Representative shall deliver any such interest. The Securityholder Representative may direct the balance 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 to 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 fully satisfied upon deposit 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 event 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 Amount in the Company Stockholders at the time of the ClosingExpense Fund.

Expense Fund. At In accordance with ‎Section 2.7(c) on the ClosingClosing Date, the Company shall deposit wire cash in an amount equal to the Expense Fund Amount into an account designated by of the Stockholder Equityholder Representative in the amount of [$100,000] (the “Expense FundFund Amount”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall be used to fund any expenses incurred by the Stockholder Representative in the performance of its duties and obligations hereunder. The Expense Fund will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund Amount shall be held by the Stockholder Equityholder Representative as agent and for the benefit of the Company Stockholders Equityholders in a segregated client bank accountaccount and shall be used for the purposes of paying directly or reimbursing the Equityholder Representative for any expenses or Damages of the Equityholder Representative incurred pursuant to this Agreement, the Escrow and Paying Agent Agreement or the Equityholder Representative Engagement Agreement (the “Expense Fund”). The Stockholder Representative will hold these funds separate from its 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 Company Stockholders shall not receive interest or other earnings on the Expense Fund and the Expense Fund shall be deposited into a non-interest bearing account. The Company Stockholders acknowledge that the Stockholder Equityholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence fraud or willful misconduct. At such time The Equityholder Representative is not acting as the Stockholder Representative determines to release a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations hereunder. The Equityholders will not receive any interest on the Stockholder Expense Fund and assign to the Equityholder Representative any such interest. The Equityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Equityholders. As soon as reasonably determined by the Equityholder Representative that the Expense Fund is no longer required to be withheld, and in any event not later than the date on which all funds are released from the Indemnity Escrow Account, the Equityholder Representative shall deliver distribute the balance then remaining amount of the Expense Fund Fund, if any, to Parent or the Exchange Paying Agent and the Surviving Corporation, as applicable, for further distribution to the Company Stockholders, with each Company Stockholder receiving its allocation of such balance Equityholders based on their respective Indemnifying Pro Rata Shares 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 same procedure set forth in ‎Section 2.4 for the payment to clause (i) the Equityholders of the definition thereof, with such changes as are necessary to reflect that such payment shall be made amounts remaining 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 event 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 ClosingIndemnity Escrow Account.

Expense Fund. At On the ClosingClosing Date, the Company shall deposit cash in an amount equal will wire to the Expense Fund Amount into an account designated by the Stockholder Securityholder Representative $250,000 (the “Expense Fund”). Such amount shall be deemed a Third Party Expense. The Expense Fund shall be used to fund any expenses incurred by the Stockholder Representative in the performance of its duties and obligations hereunder. The Expense Fund , which will be held by the Stockholder Representative until such time as the Stockholder Representative determines, in its sole discretion, that the Company Stockholders shall have no further expenses to be incurred in connection with the Transactions. The Expense Fund shall be held by the Stockholder Securityholder Representative as agent and for the benefit of the Company Stockholders Indemnifying Holders in a segregated client bank accountaccount and which will be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement, the Escrow Agreement or any Securityholder Representative engagement agreement. The Stockholder Securityholder Representative will hold these funds the Expense Fund separate from its personal funds, will not use these corporate funds for its operating expenses or any other personal purposes and will not voluntarily make these funds it available to its creditors in the event of bankruptcy. The Company Stockholders shall Indemnifying Holders will not receive any interest or other earnings on the Expense Fund and irrevocably transfer and assign to the Expense Fund shall be deposited into a non-Securityholder Representative any ownership right that they may otherwise have had in any such interest bearing accountor earnings. The Company Stockholders acknowledge that the Stockholder Securityholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative shall have no responsibility or liability advice and 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. At such time As soon as practicable following the Stockholder Representative determines to release in full of the Expense Escrow Fund, the Stockholder Securityholder Representative shall will deliver the balance of the Expense Fund to Parent or the Exchange Agent for further distribution to the Company StockholdersIndemnifying Holders, 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 event 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)their respective Indemnity Pro Rata Shares. For applicable Tax tax purposes, the Expense Fund shall will be treated as having been received and voluntary voluntarily set aside by the Company Stockholders at Indemnifying Holders. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the time of the ClosingExpense Fund, and has no tax reporting or income distribution obligations hereunder except as required by applicable law.