Common use of Expense Fund Clause in Contracts

Expense Fund. The Securityholders’ Agent (for itself and its Representatives and Affiliates) shall be entitled to full reimbursement from the Effective Time Holders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholders’ Agent in such capacity (or any of its Representatives or Affiliates in connection therewith), and to full indemnification against any loss, liability or expenses, claim, damage, fee, cost, fine, judgment, amount paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) arising out of actions taken or omitted to be taken in its capacity as Securityholders’ Agent (except for those arising out of the Securityholders’ Agent’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims (the “Securityholders’ Agent Expenses”), from the Effective Time Holders, including from funds paid to the Securityholders’ Agent under this Agreement and/or otherwise received by it in its capacity as Securityholders’ Agent, or funds to be distributed to the Effective Time Holders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the Escrow Agreement). In furtherance of the foregoing, each Effective Time Holder hereby authorizes the Payment Agent to withhold the Expense Amount from the amounts otherwise payable by the Payment Agent to the Effective Time Holders pursuant to Sections 1.5 and 1.6(a), with the Payment Agent to withhold from the Merger Consideration otherwise payable to each Effective Time Holder and distribute to the Securityholders’ Agent an amount equal to the Expense Amount, and the Payment Agent shall promptly, and in any event within three Business Days following the Effective Time, pay the Expense Amount to the Securityholders’ Agent in immediately available funds. The Expense Amount shall be retained and used by the Securityholders’ Agent in connection with the performance of its duties and obligations under this Agreement and the Escrow Agreement, and any unused amounts remaining from the Expense Amount shall be paid by the Securityholders’ Agent to the Payment Agent for distribution to the Effective Time Holders, in accordance with their respective Pro Rata Shares, at such time as the Securityholders’ Agent determines in its sole discretion to be appropriate. In addition, following exhaustion of the Expense Amount, each Effective Time Holder hereby authorizes the Securityholders’ Agent to instruct the Escrow Agent to deduct from any amounts to be released from the Escrow Fund and distributed to such Effective Time Holder in accordance with the Escrow Agreement an amount equal to such Effective Time Holder’s Pro Rata Share of any amounts to which the Securityholders’ Agent is entitled pursuant to this Section 10.1(e). If not recovered from the Expense Amount or the Escrow Fund, any Securityholders’ Agent Expenses shall be recovered directly from the Effective Time Holders according to their Pro Rata Shares. The Effective Time Holders shall not receive interest or other earnings on the Expense Amount and the Effective Time Holders irrevocably transfer and assign to the Securityholders’ Agent any ownership right that they may have in any interest that may accrue on the Expense Amount. The Securityholders’ Agent will hold the Expense Amount separate from its corporate funds and will not voluntarily make it available to its creditors in the event of bankruptcy. The Effective Time Holders acknowledge that the Securityholders’ Agent is not providing any investment supervision, recommendations or advice. The Securityholders’ Agent shall have no responsibility or liability for any loss of principal of the Expense Amount other than as a result of its gross negligence or willful misconduct. For tax purposes, the Expense Amount shall be treated as having been received and voluntarily set aside by the Effective Time Holders at the Effective Time. The parties agree that the Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Amount and has no tax reporting or income distribution obligations hereunder. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or administration of its duties.

Expense Fund. The At the Closing or within 1 Business Day after Closing, Subco will (or Acquirer will on behalf of Subco) cause a portion of the Adjusted Consideration equal to $25,000 (the “Expense Fund Amount” and, as it may be increased or decreased from time to time pursuant to this Agreement or any Securityholders’ Agent (for itself and its Representatives and Affiliatesletter agreement, the “Expense Fund”) to be deposited with the Securityholders’ Agent pursuant to payment instructions delivered by the Securityholders’ Agent to Acquirer prior to the Closing. The Expense Fund shall be entitled to full reimbursement from the Effective Time Holders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred held by the Securityholders’ Agent in such capacity a segregated client account. Notwithstanding anything to the contrary in the other provisions of this Article I, Subco (or any Acquirer on behalf of its Representatives or Affiliates in connection therewith), and to full indemnification against any loss, liability or expenses, claim, damage, fee, cost, fine, judgment, amount paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurersSubco) arising out of actions taken or omitted to be taken in its capacity as Securityholders’ Agent (except for those arising out of the Securityholders’ Agent’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims (the “Securityholders’ Agent Expenses”), from the Effective Time Holders, including from funds paid to the Securityholders’ Agent under this Agreement and/or otherwise received by it in its capacity as Securityholders’ Agent, or funds to be distributed to the Effective Time Holders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the Escrow Agreement). In furtherance of the foregoing, each Effective Time Holder hereby authorizes the Payment Agent to withhold the Expense Amount from the amounts otherwise payable by the Payment Agent to the Effective Time Holders pursuant to Sections 1.5 and 1.6(a), with the Payment Agent to withhold from the Merger Consideration otherwise payable to each Effective Time Holder and distribute to the Securityholders’ Agent an amount equal to the Expense Amount, and the Payment Agent shall promptly, and in any event within three Business Days following the Effective Time, pay the Expense Amount to the Securityholders’ Agent in immediately available funds. The Expense Amount shall be retained and used by the Securityholders’ Agent in connection with the performance of its duties and obligations under this Agreement and the Escrow Agreement, and any unused amounts remaining from the Expense Amount shall be paid by the Securityholders’ Agent to the Payment Agent for distribution to the Effective Time Holdersshall, in accordance with their respective Pro Rata Sharesthe case of each Indemnifying Holder, at withhold such time as the Securityholders’ Agent determines in its sole discretion to be appropriate. In addition, following exhaustion of the Expense Amount, each Effective Time Holder hereby authorizes the Securityholders’ Agent to instruct the Escrow Agent to deduct from any amounts to be released from the Escrow Fund and distributed to such Effective Time Holder in accordance with the Escrow Agreement an amount equal to such Effective Time Indemnifying Holder’s Pro Rata Share of any amounts the Expense Fund Amount from the portion of the Adjusted Consideration otherwise payable to which such Indemnifying Holder pursuant to Section 1.1(d)(i), Section 1.1(d)(ii) and Section 1.1(d)(iii). The Expense Fund shall be used (i) for the purpose of paying directly or reimbursing the Securityholders’ Agent is entitled pursuant to this Section 10.1(e). If not recovered from the Expense Amount or the Escrow Fund, for any Securityholders’ Agent Expenses shall be recovered directly from the Effective Time Holders according incurred pursuant to their Pro Rata Shares. The Effective Time Holders shall not receive interest this Agreement or other earnings on the Expense Amount and the Effective Time Holders irrevocably transfer and assign to the any Securityholders’ Agent any ownership right that they may have in any interest that may accrue on letter agreement, or (ii) as otherwise determined by the Expense AmountAdvisory Group. The Securityholders’ Agent will hold the Expense Amount separate from its corporate funds and will not voluntarily make it available to its creditors in the event of bankruptcy. The Effective Time Holders acknowledge that the Securityholders’ Agent is not providing any investment supervision, recommendations or advice. The Securityholders’ Agent advice and shall have no responsibility or liability for any loss of principal of the Expense Amount Fund other than as a result of its gross negligence or willful misconduct. For tax purposes, the Expense Amount shall be treated as having been received and voluntarily set aside by the Effective Time Holders at the Effective Time. The parties agree that the Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Amount Fund, and has no tax reporting or income distribution obligations hereunderobligations. The Effective Time Indemnifying Holders acknowledge will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall not be required distribute the remaining Expense Fund (if any) to expend or risk its own funds or otherwise incur any financial liability the Paying Agent and/or Acquirer, as applicable, for further distribution to the Indemnifying Holders in the exercise or performance of any of its powers, rights, duties or privileges or administration of its dutiesaccordance with their respective Pro Rata Shares.

Expense Fund. The Securityholders’ Agent (for itself and its Representatives and Affiliates) shall be entitled to full reimbursement from the Effective Time Holders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholders’ Agent in such capacity (or any of its Representatives or Affiliates in connection therewith), and to full indemnification against any loss, liability or expenses, claim, damage, fee, cost, fine, judgment, amount paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) arising out of actions taken or omitted to be taken in its capacity as Securityholders’ Agent (except for those arising out of the Securityholders’ Agent’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims (the “Securityholders’ Agent Expenses”), from the Effective Time Holders, including from funds paid to the Securityholders’ Agent under this Agreement and/or otherwise received by it in its capacity as Securityholders’ Agent, or funds to be distributed to the Effective Time Holders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the Escrow Agreement). In furtherance of the foregoing, each Effective Time Holder Each Non-Dissenting Equityholder hereby authorizes the Payment Agent to withhold $400,000 (the “Expense Amount Fund Amount”) from the amounts otherwise payable by the Payment Agent to the Effective Time Holders Non-Dissenting Equityholders pursuant to Sections 1.5 and 1.6(a)Section 1.9, with the Payment Agent to withhold from the Merger Consideration otherwise payable to each Effective Time Holder Non-Dissenting Equityholder and distribute to the Securityholders’ Agent an amount equal to each Non-Dissenting Equityholder’s Pro Rata Share of the Expense Fund Amount, . The Non-Dissenting Equityholders shall hold harmless and indemnify the Payment Agent shall promptly, Indemnitees from and in against any event within three Business Days following Damages relating to the Effective Time, pay withholding of the Expense Amount to the Securityholders’ Agent in immediately available fundsFund Amount. The Expense Fund Amount shall be retained and used by the Securityholders’ Agent in connection with the performance of its duties and obligations under this Agreement and the Escrow Agreement, and any unused amounts remaining from the Expense Fund Amount shall be paid by the Securityholders’ Agent to the Payment Agent for distribution to the Effective Time HoldersNon-Dissenting Equityholders (subject to Section 9.6(i)), in accordance with their respective Pro Rata Shares, at such time as the Securityholders’ Agent determines in its sole discretion to be appropriate. In addition, following exhaustion except that any payment made under this Section 10.(1)(e) with respect to Vested Company Options or Company RSUs shall be paid to the Surviving Corporation and the Surviving Corporation shall pay such amount (reduced by the amount of the Expense Amount, each Effective Time Holder hereby authorizes the Securityholders’ Agent to instruct the Escrow Agent to deduct from any amounts Taxes required to be released from the Escrow Fund and distributed withheld under applicable Legal Requirements with respect to such Effective Time Holder in accordance with payments) to the Escrow Agreement an amount equal to such Effective Time Holder’s Pro Rata Share of any amounts to which the Securityholders’ Agent is entitled pursuant to this Section 10.1(e). If not recovered from the Expense Amount or the Escrow Fund, any Securityholders’ Agent Expenses shall be recovered directly from the Effective Time Holders according to their Pro Rata Sharesformer holder thereof. The Effective Time Holders Non-Dissenting Equityholders shall not receive interest or other earnings on the Expense Fund Amount and the Effective Time Holders Non-Dissenting Equityholders irrevocably transfer and assign to the Securityholders’ Agent any ownership right that they may have in any interest that may accrue on the Expense Fund Amount. The Securityholders’ Agent will hold the Expense Amount separate from its corporate funds and will not voluntarily make it available to its creditors in the event of bankruptcy. The Effective Time Holders Non-Dissenting Equityholders acknowledge that the Securityholders’ Agent is not providing any investment supervision, recommendations or advice. The Securityholders’ Agent 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 or willful misconduct. For tax purposes, the Expense Fund Amount shall be treated as having been received and voluntarily set aside by the Effective Time Holders Non-Dissenting Equityholders at the Effective Timetime of Closing. The parties agree that the Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount. Any portion of the Expense Fund Amount that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Parent and has no tax reporting or income distribution obligations hereunder. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability handled in the exercise same manner as other unclaimed funds as provided in this Agreement or performance of any of its powers, rights, duties or privileges or administration of its dutiesthe Escrow Agreement.