Common use of Expense Fund Clause in Contracts

Expense Fund. 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 letter 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 held by the Securityholders’ Agent in a segregated client account. Notwithstanding anything to the contrary in the other provisions of this Article I, Subco (or Acquirer on behalf of Subco) shall, in the case of each Indemnifying Holder, withhold such Indemnifying Holder’s Pro Rata Share of the Expense Fund Amount from the portion of the Adjusted Consideration otherwise payable to 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 for any Securityholders’ Agent Expenses incurred pursuant to this Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined by the Advisory Group. 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 Indemnifying 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 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 distribute the remaining Expense Fund (if any) to the Paying Agent and/or Acquirer, as applicable, for further distribution to the Indemnifying Holders in accordance with their respective Pro Rata Shares.

Expense Fund. 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 The Securityholders’ Agent letter agreement(for itself and its Representatives and Affiliates) shall be entitled to full reimbursement from the Effective Time Holders for all reasonable expenses, the “Expense Fund”disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) to be deposited with 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 payment instructions delivered 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 Acquirer prior the Payment Agent for distribution to the Closing. The Expense Fund shall be held by Effective Time Holders, in accordance with their respective Pro Rata Shares, at such time as the Securityholders’ Agent determines in a segregated client accountits sole discretion to be appropriate. Notwithstanding anything In addition, following exhaustion of the Expense Amount, each Effective Time Holder hereby authorizes the Securityholders’ Agent to instruct the contrary 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 other provisions of this Article I, Subco (or Acquirer on behalf of Subco) shall, in the case of each Indemnifying Holder, withhold Escrow Agreement an amount equal to such Indemnifying Effective Time Holder’s Pro Rata Share of the Expense Fund Amount from the portion of the Adjusted Consideration otherwise payable any amounts to 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 which the Securityholders’ Agent for is entitled pursuant to this Section 10.1(e). If not recovered from the Expense Amount or the Escrow Fund, any Securityholders’ Agent Expenses incurred pursuant shall be recovered directly from the Effective Time Holders according to this Agreement their Pro Rata Shares. The Effective Time Holders shall not receive interest or any other earnings on the Expense Amount and the Effective Time Holders irrevocably transfer and assign to the Securityholders’ Agent letter agreement, or (ii) as otherwise determined by any ownership right that they may have in any interest that may accrue on the Advisory GroupExpense 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 and 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 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 Fund, Amount and has no tax reporting or income distribution obligationsobligations hereunder. The Indemnifying 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 Indemnifying Holders. As soon as reasonably determined by the Securityholders’ Agent acknowledge that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute not be required to expend or risk its own funds or otherwise incur any financial liability in the remaining Expense Fund (if any) to the Paying Agent and/or Acquirerexercise or performance of any of its powers, as applicablerights, for further distribution to the Indemnifying Holders in accordance with their respective Pro Rata Sharesduties or privileges or administration of its duties.

Expense Fund. At Each Non-Dissenting Equityholder hereby authorizes 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 Payment Agent to withhold $25,000 400,000 (the “Expense Fund Amount” and, as it may be increased or decreased ”) from time the amounts otherwise payable by the Payment Agent to time the Non-Dissenting Equityholders pursuant to this Agreement or any Securityholders’ Section 1.9, with the Payment Agent letter agreement, to withhold from the “Expense Fund”) Merger Consideration otherwise payable to be deposited with each Non-Dissenting Equityholder and distribute to the Securityholders’ Agent pursuant an amount equal to payment instructions delivered by the Securityholders’ Agent to Acquirer prior to the Closing. The Expense Fund shall be held by the Securityholders’ Agent in a segregated client account. Notwithstanding anything to the contrary in the other provisions of this Article I, Subco (or Acquirer on behalf of Subco) shall, in the case of each Indemnifying Holder, withhold such Indemnifying HolderNon-Dissenting Equityholder’s Pro Rata Share of the Expense Fund Amount Amount. The Non-Dissenting Equityholders shall hold harmless and indemnify the Indemnitees from and against any Damages relating to the portion withholding of the Adjusted Consideration otherwise payable to such Indemnifying Holder pursuant to Section 1.1(d)(i), Section 1.1(d)(ii) and Section 1.1(d)(iii)Expense Fund Amount. The Expense Fund Amount shall be used (i) for the purpose of paying directly or reimbursing retained by the Securityholders’ Agent for in connection with the performance of its duties and obligations under this Agreement and the Escrow Agreement, and any amounts remaining from the Expense Fund Amount shall be paid by the Securityholders’ Agent Expenses incurred pursuant to this Agreement or any the Payment Agent for distribution to the Non-Dissenting Equityholders (subject to Section 9.6(i)), in accordance with their respective Pro Rata Shares, at such time as the Securityholders’ Agent letter agreementdetermines to be appropriate, 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 (ii) as otherwise determined reduced by the Advisory Groupamount of any Taxes required to be withheld under applicable Legal Requirements with respect to such payments) to the former holder thereof. The Non-Dissenting Equityholders shall not receive interest or other earnings on the Expense Fund Amount and the 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 Non-Dissenting Equityholders acknowledge that the Securityholders’ Agent is not providing any investment supervision, recommendations or advice and 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 Non-Dissenting Equityholders at the time 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, and has no tax reporting or income distribution obligationsFund Amount. The Indemnifying Holders will not receive any interest on 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 assign to handled in the Securityholders’ Agent any such interest. Subject to Advisory Group approval, same manner as other unclaimed funds as provided in this Agreement or 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 distribute the remaining Expense Fund (if any) to the Paying Agent and/or Acquirer, as applicable, for further distribution to the Indemnifying Holders in accordance with their respective Pro Rata SharesEscrow Agreement.