Representative Expense Fund. Notwithstanding anything to the contrary set forth in this Agreement, Parent shall be entitled to withhold from the aggregate Final Adjusted Merger Consideration otherwise payable to holders of Company Common Stock in the Merger pursuant to Section 2.7(b)(i) an amount of cash equal to the Representative Expense Amount. The Representative Expense Amount shall be withheld from each holder of Company Common Stock on a pro rata basis, calculated based on each holder’s Company Stockholder Pro Rata Percentage. On the Closing Date, Parent shall deposit, or cause to be deposited, with the Representative an amount in cash equal to the Representative Expense Amount (such funds being referred to herein as the “Representative Expense Fund”). Each holder of Company Common Stock shall be deemed to have contributed to the Representative Expense Fund such holder’s pro rata portion of the Representative Expense Amount (based on the amount of the Final Adjusted Merger Consideration payable to such holder of Company Common Stock under this Agreement in respect of such holder’s Company Common Stock (without giving effect to the escrow contributions or holdbacks contemplated by this Agreement) relative to the aggregate Final Adjusted Merger Consideration payable in respect of Company Common Stock), to be held by the Representative pursuant to this Agreement. If, as of immediately prior to the Effective Time (and after giving effect to any acceleration of vesting that occurs as a result of the consummation of the Merger), a holder of Company Common Stock shall hold any Unvested Company Capital Stock, then all or a portion of any Final Adjusted Merger Consideration otherwise payable under this Agreement in respect of any Vested Company Capital Stock held by such Company Stockholder shall be withheld and deposited into the Representative Expense Fund prior to the deposit of any Unvested Cash and, thereafter, any Unvested Cash payable to such Company Stockholder under this Agreement shall be withheld and deposited into the Representative Expense Fund if and only to the extent necessary to satisfy such Company Stockholder’s entire representative expense fund contribution obligation under this Agreement (with the understanding and agreement that any Unvested Cash so deposited into the Representative Expense Fund on behalf of any such Company Stockholder shall vest prior to any Unvested Cash payable under this Agreement in respect of any Unvested Company Capital Stock held by such Company Stockholder that is not so deposited into the Representative Expense Fund). The Representative Expense Amount shall be held and distributed in accordance with the provisions of this Agreement. The Representative shall hold the Representative Expense Fund as partial security for the reimbursement obligations of the Indemnifying Parties under this Table of Contents Agreement in accordance with the terms and conditions set forth herein. Following the expiration of the Survival Period in accordance with its terms and the satisfaction of any Indemnification Claims outstanding at such expiration, the Representative shall transfer any amounts remaining in the Representative Expense Fund to the Paying Agent to be distributed to the Indemnifying Parties upon the terms and conditions set forth in ARTICLE 8.
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Representative Expense Fund. (i) Notwithstanding anything to the contrary set forth in this Agreement, Parent Buyer shall be entitled to withhold (but without duplication) from the aggregate Final Adjusted Merger Total Consideration otherwise payable to holders of Company Common Stock the Contributing Securityholders in the Merger Acquisition pursuant to Section 2.7(b)(iSections 2.1(b), 2.1(c), and 2.2(a) an amount of cash equal to the Representative Expense Amount. The Representative Expense Amount shall be withheld from each holder of Company Common Stock on a pro rata basis, calculated Contributing Securityholder based on each holdersuch Contributing Securityholder’s Company Stockholder Pro Rata PercentageShare, and each Contributing Securityholder shall be deemed to have contributed to the Representative Expense Fund such Contributing Securityholder’s Pro Rata Share of the Representative Expense Amount, to be held by the Representative pursuant to this Agreement. On At the Closing DateFunding Time, Parent Buyer shall deposit, or cause to be deposited, with the Representative an amount in cash equal to the Representative Expense Amount (such funds being referred to herein as the “Representative Expense Fund”). Each holder of Company Common Stock shall be deemed to have contributed to the Representative Expense Fund such holder’s pro rata portion of the Representative Expense Amount (based on the amount of the Final Adjusted Merger Consideration payable to such holder of Company Common Stock under this Agreement in respect of such holder’s Company Common Stock (without giving effect to the escrow contributions or holdbacks contemplated by this Agreement) relative to the aggregate Final Adjusted Merger Consideration payable in respect of Company Common Stock), to be held by the Representative pursuant to this Agreement. If, as of immediately prior to the Effective Time (and after giving effect to any acceleration of vesting that occurs as a result of the consummation of the Merger), a holder of Company Common Stock shall hold any Unvested Company Capital Stock, then all or a portion of any Final Adjusted Merger Consideration otherwise payable under this Agreement in respect of any Vested Company Capital Stock held by such Company Stockholder shall be withheld and deposited into the Representative Expense Fund prior to the deposit of any Unvested Cash and, thereafter, any Unvested Cash payable to such Company Stockholder under this Agreement shall be withheld and deposited into the Representative Expense Fund if and only to the extent necessary to satisfy such Company Stockholder’s entire representative expense fund contribution obligation under this Agreement (with the understanding and agreement that any Unvested Cash so deposited into the Representative Expense Fund on behalf of any such Company Stockholder shall vest prior to any Unvested Cash payable under this Agreement in respect of any Unvested Company Capital Stock held by such Company Stockholder that is not so deposited into the Representative Expense Fund). The Representative Expense Amount shall be held and distributed in accordance with the provisions of this Agreement. The Representative shall hold the Representative Expense Fund as partial security for the reimbursement obligations of the Indemnifying Parties to the Representative in connection with performance of its duties under this Table of Contents Agreement in accordance with the terms and conditions set forth herein. Following The Contributing Securityholders will not receive any interest or earnings on the expiration Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of the Survival Period in accordance with its terms and the satisfaction of any Indemnification Claims outstanding at such expirationbankruptcy. For tax purposes, the Representative shall transfer Expense Fund will be treated as having been received and voluntarily set aside by the Contributing Securityholders at the time of Closing. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any amounts remaining in balance of the Representative Expense Fund to the Paying Agent to be distributed for further distribution to the Indemnifying Parties upon Contributing Securityholders, according to the terms and conditions set forth in ARTICLE 8of this Agreement.
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Samples: Share Purchase Agreement (JFrog LTD)
Representative Expense Fund. Notwithstanding anything to the contrary set forth in this Agreement, Parent shall be entitled to withhold from the aggregate Final Adjusted Merger Consideration otherwise payable to holders of each Company Common Stock in the Merger Securityholder pursuant to Section 2.7(b)(i) 2.7 an amount of cash equal to the Representative Expense Amount. The Representative Expense Amount shall be withheld from each holder of such Company Common Stock on a pro rata basis, calculated based on each holderSecurityholder in accordance with such Company Securityholder’s Company Stockholder Pro Rata PercentageShare. On As soon as practicable following the Effective Time (but, in any event, within one Business Day following the Closing Date), Parent shall deposit, or cause to be deposited, with the Representative an amount in cash equal to the Representative Expense Amount (such funds being referred to herein as the “Representative Expense Fund”). The Representative Expense Fund shall be held by the Representative as agent and for the benefit of the Company Securityholders in a segregated client bank account and shall be used solely for the purposes of paying directly, or reimbursing the Representative for, any third party expenses pursuant to this Agreement. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Each holder of Company Common Stock Securities shall be deemed to have contributed to the Representative Expense Fund such holder’s pro rata portion Pro Rata Share of the Representative Expense Amount (based on the amount of the Final Adjusted Merger Consideration payable to such holder of Company Common Stock under this Agreement in respect of such holder’s Company Common Stock (without giving effect to the escrow contributions or holdbacks contemplated by this Agreement) relative to the aggregate Final Adjusted Merger Consideration payable in respect of Company Common Stock)Amount, to be held by the Representative pursuant to this Agreement. If, as of immediately prior to the Effective Time (and after giving effect to any acceleration of vesting that occurs as a result of the consummation of the Merger)Time, a holder of Company Common Stock Securities shall hold any Unvested Company Capital StockEquity Awards, then all or a portion of any Final Adjusted Merger Consideration otherwise payable under this Agreement in respect of any Vested Company Capital Stock or Vested Company Options held by such Company Stockholder Unvested Equity Awardholder as of immediately prior to the Effective Time shall be withheld and deposited into the Representative Expense Fund prior to the deposit of any amounts payable under this Agreement in respect of any Unvested Cash andEquity Awards held by such Unvested Equity Awardholder as of immediately prior to the Effective Time, thereafteruntil such Unvested Equity Awardholder’s entire contribution to the Representative Expense Fund (in respect of all Company Securities held by such Unvested Equity Awardholder, whether vested or unvested) has been withheld and deposited into the Representative Expense Fund. Thereafter, any Unvested Cash amounts payable to such Company Stockholder Unvested Equity Awardholder under this Agreement shall be withheld and deposited into the Representative Expense Fund by Parent if and only to the extent necessary to satisfy such Company StockholderUnvested Equity Awardholder’s entire representative expense fund Representative Expense Fund contribution obligation under this Agreement (with the understanding and agreement that any Unvested Cash amounts so deposited into the Representative Expense Fund on behalf of any such Company Stockholder Unvested Equity Awardholder shall vest prior to any Unvested Cash amounts payable under this Agreement in respect of any Unvested Company Capital Stock Equity Award held by such Company Stockholder Unvested Equity Awardholder that is not so deposited into the Representative Expense Fund). The Representative Expense Amount shall be held and distributed in accordance with the provisions of this Agreement. The Representative shall hold the Representative Expense Fund as partial security for the reimbursement obligations of the Indemnifying Parties under this Table of Contents Agreement in accordance with the terms and conditions set forth herein. Following The Company Securityholders shall not receive interest or other earnings on the expiration of the Survival Period in accordance with its terms Representative Expense Fund and the satisfaction of any Indemnification Claims outstanding at such expiration, Company Securityholders irrevocably transfer and assign to the Representative shall transfer any amounts remaining ownership right that they may have in any interest that may accrue on funds held in the Representative Expense Fund. The Company Securityholders acknowledge that the Representative is not providing any investment supervision, recommendations or advice. The Representative shall have no responsibility or liability for any loss of principal of the Representative Expense Fund to the Paying Agent to be distributed to the Indemnifying Parties upon the terms and conditions set forth in ARTICLE 8other than as a result of its gross negligence or willful misconduct.
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Representative Expense Fund. Notwithstanding anything to the contrary set forth in this Agreement, Parent shall be entitled to withhold from the aggregate Final Adjusted Merger Consideration otherwise payable to holders of Company Common Stock in the Merger pursuant to Section 2.7(b)(i) an amount of cash equal to the Representative Expense Amount. The Representative Expense Amount shall be withheld from each holder of Company Common Stock on available as a pro rata basisfund for (i) the Representative Expenses incurred pursuant to this Agreement, calculated based on each holder’s Company Stockholder Pro Rata Percentage. On the Closing Date, Parent shall depositEscrow Agreement, or cause to be deposited, with the Representative an amount in cash equal to Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. In the event that the Representative Expense Amount (shall be insufficient to satisfy the expenses of the Holders’ Representative, and if not recovered directly from the Company Holders, prior to the distribution from the Adjustment Escrow Fund or the Holdback Fund to the Company Holders of any amounts thereof in accordance with this Agreement and the Escrow Agreement, the Holders’ Representative shall have the right to recover the Representative Expenses from any remaining portion of the Adjustment Escrow Fund and/or the Holdback Fund prior to any distribution to the Company Holders and prior to any such funds being referred distribution, shall deliver to herein Parent or the Escrow Agent, as applicable, a certificate setting forth the “Representative Expenses actually incurred. Upon receipt of such certificate, Parent or the Escrow Agent, as applicable shall pay such Representative Expenses to the Holders’ Representative. Notwithstanding anything to the contrary contained herein, the Holders’ Representative’s right to recover Representative Expenses shall not prejudice Parent’s right to recover the full amount that Parent is entitled to recover from the Adjustment Escrow Fund and Holdback Fund pursuant to this Agreement. The Company Holders shall not receive interest or other earnings on the Representative Expense Fund”). Each holder The Representative shall have no responsibility or liability for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Holders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Fund, and has no tax reporting or income distribution obligations. The Company Common Stock shall be deemed Holders will not receive any interest on the Representative Expense Fund and assign to have contributed the Holders’ Representative any such interest. Subject to Advisory Group approval, the Holders’ Representative may contribute funds to the Representative Expense Fund such holder’s pro rata portion of the Representative Expense Amount (based on the amount of the Final Adjusted Merger Consideration payable to such holder of Company Common Stock under this Agreement in respect of such holder’s Company Common Stock (without giving effect from any consideration otherwise distributable to the escrow contributions or holdbacks contemplated by this Agreement) relative to the aggregate Final Adjusted Merger Consideration payable in respect of Company Common Stock)Holders. For tax purposes, to be held by the Representative pursuant to this Agreement. If, as of immediately prior to the Effective Time (and after giving effect to any acceleration of vesting that occurs as a result of the consummation of the Merger), a holder of Company Common Stock shall hold any Unvested Company Capital Stock, then all or a portion of any Final Adjusted Merger Consideration otherwise payable under this Agreement in respect of any Vested Company Capital Stock held by such Company Stockholder shall be withheld and deposited into the Representative Expense Fund prior to the deposit of any Unvested Cash and, thereafter, any Unvested Cash payable to such Company Stockholder under this Agreement shall be withheld treated as having been received and deposited into voluntarily set aside by the Company Holders at the time of Closing. Any amounts remaining from the Representative Expense Fund if and only shall be paid to the extent necessary Exchange Agent for distribution to satisfy such the Company Stockholder’s entire representative expense fund contribution obligation under this Agreement Holders (with the understanding and agreement that any Unvested Cash so deposited into the Representative Expense Fund based on behalf of any such Company Stockholder shall vest prior to any Unvested Cash payable under this Agreement in respect of any Unvested Company Capital Stock held by such Company Stockholder that is not so deposited into the Representative Expense Fund). The Representative Expense Amount shall be held and distributed in accordance with the provisions of this Agreement. The Representative shall hold the Representative Expense Fund as partial security for the reimbursement obligations of the Indemnifying Parties under this Table of Contents Agreement in accordance with the terms and conditions set forth herein. Following the expiration of the Survival Period in accordance with its terms and the satisfaction of any Indemnification Claims outstanding their Pro Rata Portions) at such expiration, time as the Holders’ Representative shall transfer any amounts remaining in the Representative Expense Fund to the Paying Agent determines to be distributed to the Indemnifying Parties upon the terms and conditions set forth in ARTICLE 8appropriate.
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Representative Expense Fund. Notwithstanding anything to All Representative Losses incurred by the contrary set forth Securityholders’ Representative in this Agreement, Parent performing its duties hereunder shall be entitled to withhold paid from the aggregate Final Adjusted Merger Consideration otherwise payable to holders of Company Common Stock in the Merger pursuant to Section 2.7(b)(i) an amount of cash equal to the Representative Expense AmountFund. The Representative Expense Amount shall Fund will be withheld from each holder used (a) for the purposes of Company Common Stock on a pro rata basis, calculated based on each holder’s Company Stockholder Pro Rata Percentage. On the Closing Date, Parent shall depositpaying directly, or cause reimbursing the Securityholders’ Representative for, any Representative Losses or third party expenses incurred pursuant to any Representative Agreement or the Securityholders’ Representative Engagement Agreement, or (b) as otherwise determined by the Advisory Group. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and will not be depositedliable for any loss or diminution of the Representative Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative an amount in cash equal to Expense Fund, and has no tax reporting or income distribution obligations. The Indemnifying Persons will not receive any interest on the Representative Expense Amount (Fund and assign to the Securityholders’ Representative any such interest. Subject to Advisory Group approval, the Securityholders’ Representative may contribute funds being referred to herein as the “Representative Expense Fund”). Each holder of Company Common Stock shall be deemed to have contributed to the Representative Expense Fund such holder’s pro rata portion from any consideration otherwise distributable to the Indemnifying Persons. As soon as practicable following the completion of the Securityholders’ Representative’s responsibilities, the Securityholders’ Representative will (i) deposit with the Paying Agent (A) for distribution to the Company Stockholders in accordance with their Pro Rata Share the remaining Representative Expense Amount Fund, and the Paying Agent shall promptly distribute to each Company Stockholder its portion thereof in accordance with instructions received from the Securityholders’ Representative and (based on B) deposit with the amount Surviving Corporation for distribution to each Bonus Plan Participant, their respective Pro Rata Shares of the Final Adjusted Merger Consideration payable to such holder of Company Common Stock under this Agreement in respect of such holder’s Company Common Stock (without giving effect to the escrow contributions or holdbacks contemplated by this Agreement) relative to the aggregate Final Adjusted Merger Consideration payable in respect of Company Common Stock), to be held by the Representative pursuant to this Agreement. If, as of immediately prior to the Effective Time (and after giving effect to any acceleration of vesting that occurs as a result of the consummation of the Merger), a holder of Company Common Stock shall hold any Unvested Company Capital Stock, then all or a portion of any Final Adjusted Merger Consideration otherwise payable under this Agreement in respect of any Vested Company Capital Stock held by such Company Stockholder shall be withheld and deposited into the remaining Representative Expense Fund prior to the deposit of any Unvested Cash and, thereafter, any Unvested Cash payable to such Company Stockholder under this Agreement shall be withheld and deposited into the Representative Expense Fund if and only to the extent necessary to satisfy such Company Stockholder’s entire representative expense fund contribution obligation under this Agreement (with the understanding and agreement that any Unvested Cash so deposited into the Representative Expense Fund on behalf of any such Company Stockholder shall vest prior to any Unvested Cash payable under this Agreement in respect of any Unvested Company Capital Stock held by such Company Stockholder that is not so deposited into the Representative Expense Fund). The Representative Expense Amount shall be held and distributed in accordance with instructions received from the provisions of this Agreement. The Securityholders’ Representative shall hold the Representative Expense Fund as partial security for the reimbursement obligations of the Indemnifying Parties under this Table of Contents Agreement in accordance with the terms and conditions set forth herein. Following the expiration of the Survival Period in accordance with its terms and the satisfaction of any Indemnification Claims outstanding at such expiration, the Representative shall transfer any amounts remaining in the Representative Expense Fund to the Paying Agent to be distributed to the Indemnifying Parties upon the terms and conditions set forth in ARTICLE 8Section 12.6(b).
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Representative Expense Fund. Notwithstanding anything to the contrary set forth in this Agreement, Parent shall be entitled to withhold from the aggregate Final Adjusted Merger Consideration otherwise payable to holders of Company Common Stock in the Merger pursuant to Section 2.7(b)(i) an amount of cash equal to the Representative Expense Amount. The Representative Expense Fund Amount shall be withheld from each holder of Company Common Stock on and paid directly to an account maintained by the Representative (or a pro rata basis, calculated based on each holder’s Company Stockholder Pro Rata Percentage. On financial institution selected by the Closing Date, Parent shall deposit, Representative) as a fund for the fees and expenses (including any legal fees and expenses) incurred by the Representative or cause to be deposited, HIG Seller in connection with the Representative an amount in cash equal to marketing of the Company, the negotiation and execution of this Agreement and the Escrow Agreement and the completion of the transactions contemplated hereby and thereby, and the payment of other obligations of the Representative Expense Amount and the Unitholders related thereto (such funds being referred to herein as the “Representative Expense Fund”). Each holder , and finally with any balance of Company Common Stock shall be deemed to have contributed to the Representative Expense Fund not utilized for such holderpurposes to be returned to the Designated Unitholders based upon each such Designated Unitholder’s pro rata portion of the Representative Expense Amount (Per Unit Portion and to HIG Seller based on the amount of Per Unit Portion for the Final Adjusted Merger Consideration payable to such holder of Company Common Stock under this Agreement in respect of such holder’s Company Common Stock (without giving effect to the escrow contributions or holdbacks contemplated Units owned by this Agreement) relative to the aggregate Final Adjusted Merger Consideration payable in respect of Company Common Stock), to be held by the Representative pursuant to this Agreement. If, as of HIG Holdco immediately prior to the Effective Time (and after giving effect to any acceleration of vesting Holdco Closing. In the event that occurs as a result of the consummation of the Merger), a holder of Company Common Stock shall hold any Unvested Company Capital Stock, then all or a portion of any Final Adjusted Merger Consideration otherwise payable under this Agreement in respect of any Vested Company Capital Stock held by such Company Stockholder shall be withheld and deposited into the Representative Expense Fund Amount shall be insufficient to satisfy the fees and expenses of, and other amounts payable by, the Representative, and in the event there are any remaining funds in the Indemnity Escrow Fund to which the Representative is entitled to distribution pursuant to the terms of this Agreement and the Escrow Agreement on behalf of the Unitholders, then immediately prior to the deposit final distribution from the Indemnity Escrow Fund to the Representative on behalf of any Unvested Cash and, thereafter, any Unvested Cash payable the Unitholders pursuant to such Company Stockholder under this Agreement and the Escrow Agreement, the Representative shall be withheld and deposited into entitled to recover any such expenses from the Representative Expense Indemnity Escrow Fund if and only to the extent necessary to satisfy of such Company Stockholder’s entire representative expense fund contribution obligation under this Agreement (with the understanding and agreement that any Unvested Cash so deposited into the Representative Expense Fund on behalf of any such Company Stockholder shall vest funds prior to any Unvested Cash payable under this Agreement in respect the distribution of any Unvested Company Capital Stock held by such Company Stockholder that is not so deposited into funds to the Representative Expense Fund). The Representative Expense Amount shall be held and distributed in accordance with the provisions of this AgreementUnitholders. The Representative shall hold also be entitled to recover any remaining expenses directly from the Representative Expense Fund as partial security for the reimbursement obligations of the Indemnifying Parties under this Table of Contents Agreement in accordance with the terms Unitholders, and conditions set forth herein. Following the expiration of the Survival Period in accordance with its terms and the satisfaction of any Indemnification Claims outstanding at such expiration, the Representative shall transfer not have any amounts remaining obligation to personally advance funds in connection with the performance of any duties as the Representative Expense Fund to the Paying Agent to be distributed to the Indemnifying Parties upon the terms and conditions set forth in ARTICLE 8under this Agreement.
Appears in 1 contract
Samples: Purchase Agreement and Plan of Merger (Arcosa, Inc.)
