Common use of Securityholders Agent Clause in Contracts

Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders and shall have full power authority to represent, to give and receive notices and communications, to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this Agreement by Acquiror, to object to such releases, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, in accordance with the terms and provisions set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten (10) days’ prior written notice to Acquiror. The immunities and rights to indemnification between the Effective Time Holders and the Securityholders’ Agent and Advisory Group shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. (b) Certain Effective Time Holders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold the Securityholders’ Agent Group harmless against any claim, damage, fee, cost, loss, liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his duties hereunder under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Fund otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. 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 pursuant to this Agreement the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. (c) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $250,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or 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. The Securityholders’ Agent 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 Effective Time Holders 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 Effective Time 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 distribute the remaining Expense Fund (if any) to the Payment Agent and/or Acquiror, as applicable, for further distribution to the Effective Time Holders. (d) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Effective Time Holder or other party.

Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as exclusive representative, agent and attorney-in-fact for and on behalf of the Effective Time Holders as of the Closing for all purposes in connection with this Agreement and any agreement ancillary hereto and shall have full power and authority to represent, to give and receive notices and communications, to authorize the Escrow Agent to release of any portion of the Escrow Consideration Amount to Acquiror in satisfaction of claims under this Agreement by Acquiror, to object to such releasesdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, in accordance with the terms and provisions set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 2.12 and Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such Such agency may be changed by the vote holders of Effective Time Holders representing a majority in interest of the Escrow Consideration Amount from time to time upon not less than ten (10) days’ prior written notice to Acquiror. The immunities and rights to indemnification between the Effective Time Holders and the Securityholders’ Agent and Advisory Group shall survive the resignation or removal of the Securityholders’ Agent or may resign at any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementtime. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. (b) Certain Effective Time Holders have entered into an engagement agreement (the “The Securityholders’ Agent Engagement Agreement”) will incur no liability of any kind with the Securityholders’ Agent respect to provide direction to any action or omission by the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold the Securityholders’ Agent Group harmless against any claim, damage, fee, cost, loss, liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his duties hereunder under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Fund otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. 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 Agent’s services pursuant to this Agreement and any agreements ancillary hereto, except in the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, event of liability directly resulting from the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. (c) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $250,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its Agent’s gross negligence or willful misconduct. The Securityholders’ Agent is shall not acting as a withholding agent be liable for any action or in any similar capacity in connection with omission pursuant to the Expense Fund, and has no tax reporting or income distribution obligationsadvice of counsel. The Effective Time Holders severally (and not jointly) based on such Effective Time Holder’s Pro Rata Portion will not receive any interest on the Expense Fund indemnify, defend and assign to hold harmless the Securityholders’ Agent from and against any such interest. Subject to Advisory Group approvaland all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Securityholders’ Agent may contribute funds to the Expense Fund from Agent’s execution and performance of this Agreement and any consideration otherwise distributable to the Effective Time 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 distribute the remaining Expense Fund (if any) to the Payment Agent and/or Acquiror, as applicable, for further distribution to the Effective Time Holders.agreements (dc) The Securityholders’ Agent shall have reasonable access to information about Target Company and the Target Company Subsidiaries and the reasonable assistance of TargetCompany’s and the Target’s Company Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target Company or any Target Company Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The . (d) A decision, act, consent or instruction of the Securityholders’ Agent shall constitute a decision of all Effective Time Holders for whom the Merger Consideration otherwise payable to them is released to Acquiror from the Escrow Account with respect to the matters set forth herein and shall be entitled to: (i) rely final, binding and conclusive upon the Payment Scheduleeach Effective Time Holder, (ii) and Acquiror may rely upon any signature believed by it to be genuinedecision, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf act, consent or instruction of the applicable Securityholders’ Agent as being the decision, act, consent or instruction of each and every Effective Time Holder Holder. Acquiror is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or other partyinstruction of the Securityholders’ Agent.

Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders Securityholders and shall have full power authority to represent, to give and receive notices and communications, to authorize the Escrow Agent to release of any portion of the Escrow Consideration Fund to Acquiror in satisfaction of claims under this Agreement by Acquiror, to release any portion of the Securityholders’ Agent Holdback Amount to the Securityholders, as applicable, object to such releasesdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time HoldersSecurityholders’ behalf with respect to the matters set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, in accordance with the terms and provisions set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 2.13 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such Such agency may be changed by the vote holders of Effective Time Holders representing a majority in interest of the Escrow Consideration Fund from time to time upon not less than ten (10) days’ prior written notice to Acquiror. The immunities and rights to indemnification between the Effective Time Holders and the Securityholders’ Agent and Advisory Group shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time HoldersSecurityholders. (b) Certain Effective Time Holders have entered into an engagement agreement (the “The Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall not be liable for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement hereunder as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders Securityholders shall severally, in accordance with their Pro Rata Portion, indemnify, defend severally indemnify and hold the Securityholders’ Agent Group harmless against any claim, damage, fee, cost, loss, liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his his, her or its duties hereunder under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Fund otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. 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 pursuant to this Agreement the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actionshereunder. (c) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $250,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or 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. The Securityholders’ Agent 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 Effective Time Holders 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 Effective Time 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 distribute the remaining Expense Fund (if any) to the Payment Agent and/or Acquiror, as applicable, for further distribution to the Effective Time Holders. (d) The Securityholders’ Agent shall have reasonable access to information about Target and the Target, Target Subsidiaries and Target Related Businesses and the reasonable assistance of Target’s and the Target’s Target Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target, any Target Subsidiary or any Target Subsidiary Related Business to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The . (d) Acquiror acknowledges that the Securityholders’ Agent shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it may have a conflict of interest with respect to be genuineits duties as Securityholders’ Agent, and (iii) reasonably assume in such regard the Securityholders’ Agent has informed Acquiror that a signatory has proper authorization to sign on behalf it will act in the best interests of the applicable Effective Time Holder or other partySecurityholders.

Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as the exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders and shall have full power authority to represent, to give and receive notices and communications, to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this Agreement by Acquiror, to object to such releases, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, in accordance with the terms and provisions set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein, herein and in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreementengagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten (10) days’ prior written notice to Acquiror. The immunities and rights to indemnification between the Effective Time Holders and the Securityholders’ Agent and Advisory Group shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration. (b) Certain Effective Time Holders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement engagement agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement hereunder as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold the Securityholders’ Agent Group harmless against any loss, liability, claim, damage, cost, fee, costfine, lossjudgment, liability amount paid in settlement or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement ) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his duties hereunder under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreementhereunder. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Fund Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. 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 pursuant to this Agreement Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. (c) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). (d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $250,000 1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent Engagement Agreementletter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or 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. The Securityholders’ Agent 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 Effective Time Holders 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 Effective Time 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 distribute the remaining Expense Fund (if any) to the Payment Agent and/or Acquiror, as applicable, for further distribution to the Effective Time Holders. (d) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Effective Time Holder or other party.