Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken place. (b) A TRA Limited Partner may assign any of its rights under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreement. (c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 2 contracts
Sources: Tax Receivables Agreement (Galaxy Digital Inc.), Tax Receivables Agreement (Galaxy Digital Holdings Ltd.)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure solely to the benefit of the parties hereto hereto, except for: (i) only following the Effective Time, the right of the Company’s stockholders and their respective successors holders of Company Stock Options, Company Restricted Shares and assigns. No provision Company Stock Units, as applicable, to receive (w) the Merger Consideration in respect of shares of Company Common Stock pursuant to Section 2.02, (x) the consideration payable in respect of Company Stock Options pursuant to Section 2.05(a), (y) the consideration payable in respect of Company Restricted Shares pursuant to Section 2.05(a) and (z) the consideration payable in respect of Company Stock Units pursuant to Section 2.05(a), (ii) the right of the Company on behalf of its stockholders to pursue damages (including claims for damages based on loss of the economic benefits of the Merger to the Company’s stockholders) in the event of Parent’s or Merger Subsidiary’s wrongful termination of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor breach of this Agreement (whether or not this Agreement has been terminated pursuant to Section 10.01), which right is hereby expressly acknowledged and agreed by purchaseParent and Merger Subsidiary and (iii) the right of the Indemnified Persons to enforce the provisions of Section 7.03 only, mergerand except that any Financing Source shall be an express third-party beneficiary of Section 11.07, consolidation Section 11.08 and Section 11.09. The third-party beneficiary rights referenced in clause (ii) of the preceding sentence may be exercised only by the Company (on behalf of its stockholders as their agent) through actions expressly approved by the Board of Directors of the Company, and no stockholder of the Company whether purporting to act in its capacity as a stockholder or purporting to assert any right (derivatively or otherwise) to all or substantially all on behalf of the business Company, shall have any right or assets ability to exercise or cause the exercise of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no any such succession had taken placeright.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement to any Person as long as such transferee has executed without the prior written consent of each other party hereto, except that Parent or Merger Subsidiary may transfer or assign its rights and delivered, or, in connection with such transfer, executes and delivers, a joinder to obligations under this Agreement, in form whole or from time to time in part, to (i) one or more of Exhibit Atheir Affiliates at any time and (ii) after the Effective Time, agreeing to become a “TRA Limited Partner” for all purposes any Person; provided that such transfer or assignment shall not relieve Parent or Merger Subsidiary of this Agreementits obligations hereunder or enlarge, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless alter or change any obligation of whether such TRA Limited Partner continues any other party hereto or due to hold any interests in GDH LP Parent or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this AgreementMerger Subsidiary.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Aetna Inc /Pa/), Merger Agreement (Coventry Health Care Inc)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and permitted assigns. No Except for Section 11.14, which is intended to benefit, and to be enforceable by, the Persons specified therein, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and permitted assigns. HoldCo ; provided that (i) from and after the Effective Time, the Indemnified Persons shall require be third party beneficiaries of, and cause any direct or indirect successor entitled to enforce, Section 7.02, (whether by purchaseii) from and after the Effective Time, merger, consolidation or otherwise) the provisions of Article 2 relating to all or substantially all the payment of the business Merger Consideration and any amounts contemplated to be paid pursuant to Section 2.05 shall be enforceable by the holders, immediately prior to the Effective Time, of Company Stock or assets Company Equity Awards, as applicable, (iii) from and after the Effective Time, the provisions of HoldCoSection 8.09 relating to the payment in respect of the Redemption shall be enforceable by the holders, by written agreementimmediately prior to the Effective Time, expressly of Preferred Stock, (iv) prior to assume the Effective Time, the Company shall have the right to pursue damages and agree to perform this Agreement other relief, including equitable relief, on behalf of its shareholders in the same manner event of Parent, Holdco, Holdco II or Merger Subsidiary’s Fraud, Willful and Material Breach or wrongful termination of this Agreement, which right is hereby acknowledged by Parent, Holdco, Holdco II and Merger Subsidiary and (v) the Non-Recourse Parties shall be third party beneficiaries of, and entitled to the same extent that HoldCo would be required to perform if no such succession had taken placeenforce, Section 11.15.
(b) A TRA Limited Partner may assign any of its rights under this Agreement Notwithstanding anything to any Person as long as such transferee has executed and delivered, or, the contrary in connection with such transfer, executes and delivers, a joinder to this Agreement, in form without limitation to the foregoing, subject to Section 11.13, Parent, Holdco, Holdco II and Merger Subsidiary expressly acknowledge and agree that the Company shall have the right, to the extent permitted by Applicable Law, on behalf of Exhibit Aits shareholders to be, agreeing to become a “TRA Limited Partner” and is hereby, appointed as representative of its shareholders solely for all purposes of this AgreementSection 11.06(b), except as otherwise provided in such joinder; providedto pursue damages against Parent, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under Holdco, Holdco II and/or Merger Subsidiary for the procedure in this Section 7.2(b) regardless loss of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the Merger Consideration (including, for the avoidance of doubt, damages based on the loss of the premium offered to each such holder) in the event of any Person that was Fraud or Willful and Material Breach of this Agreement by Parent, Holdco, Holdco II or Merger Subsidiary in respect of which the Company is entitled to bring a party to the Original TRA, including any Person which was the assignee of rights under the Original TRAclaim hereunder, and which becomes a party any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in part, by the Company to such shareholders as of any date determined by the Company or (y) retained by the Company for the use and benefit of the Company and its Subsidiaries in any manner that the Company deems fit. The appointment of the Company as representative of the Company’s shareholders pursuant to this Agreement Section 11.06(b) shall be considered a “TRA Limited Partner” for irrevocable and binding on all purposes of this Agreementthe Company’s shareholders from and after the satisfaction of the condition set forth in Section 9.01(a).
(c) GDH LP shall have No party may assign, delegate or otherwise transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement without the power and authority consent of each other party hereto, except that Parent, Holdco, Holdco II or Merger Subsidiary may transfer or assign all (but not the obligationless than all) to permit any Person who becomes a partner in GDH LP to execute of its rights and deliver a joinder to obligations under this Agreement promptly upon acquisition to (x) one of LP Units by Parent’s wholly-owned Subsidiaries at any time or (y) for collateral security purposes to the Financing Entities; provided that such Persontransfer or assignment shall not (i) relieve Parent, and such Person Holdco, Holdco II or Merger Subsidiary of its obligations hereunder or (ii) enlarge, alter, limit or change any obligation of any other party hereto or due to Parent, Holdco, Holdco II or Merger Subsidiary. Any purported assignment not permitted under this Section 11.06(c) shall be treated as a “TRA Limited Partner” for all purposes of this Agreementnull and void.
Appears in 2 contracts
Sources: Merger Agreement (Cantaloupe, Inc.), Merger Agreement (Cantaloupe, Inc.)
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall upon, inure solely to the benefit of the parties and be enforceable by each party hereto and their respective permitted successors and assigns. No provision of Nothing in this Agreement Agreement, express or implied is intended to or shall confer any rights, benefits, remedies, obligations or liabilities hereunder upon any other Person other than any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that, notwithstanding the parties hereto foregoing, (i) the past, present and future officers, directors and employees of the Acquired Companies (and their respective successors successors, heirs and assigns. HoldCo representatives) are intended third-party beneficiaries of, and may enforce, Section 6.07, (ii) solely from and after the Effective Time, the holders of shares of Company Common Stock shall require be intended third-party beneficiaries of, and cause any direct or indirect successor may enforce, Articles II and III, (whether by purchaseiii) the Financing Related Persons shall be intended third-party beneficiaries of, mergerand may enforce, consolidation or otherwise) to all or substantially all the Lender Protective Provisions, and the rights of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and Parent Parties hereunder may be pledged to the same extent that HoldCo would Financing Related Persons pursuant to the Debt Financing, (iv) the Parent Parties shall be required to perform if no such succession had taken placeshall be intended third-party beneficiaries of, and may enforce, Section 8.03(e) and Section 9.13 and (v) the Company Parties shall be shall be intended third-party beneficiaries of, and may enforce, Section 8.03(c).
(b) A TRA Limited Partner may assign Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Law or otherwise without the prior written consent of the other parties; provided that each of Parent and each Merger Sub may transfer or assign its rights and obligations under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form whole or from time to time in part, to (i) one or more of Exhibit Aits Affiliates at any time (provided that such assignment would not reasonably be expected to delay the Closing or satisfaction of any condition to closing hereunder) and (ii) after the Effective Time, agreeing to become a “TRA Limited Partner” for all purposes any Person, provided that, in each case, any assignment by Parent or either Merger Sub shall not relieve Parent or either Merger Sub of its obligations hereunder. Any purported assignment in violation of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement Section 9.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No , and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo , other than: (i) at and after the Effective Time, with respect to the provisions of Section 6.10 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCo, by written agreement, expressly the holders of shares of Company Stock to assume receive the Merger Consideration in accordance with the terms and agree to perform conditions of this Agreement and (iii) at and after the Effective Time, the rights of the holders of Company RSUs and Company Stretch Awards to receive the payments contemplated by the applicable provisions of Section 3.3, in each case, at the same manner Effective Time in accordance with the terms and conditions of this Agreement; provided that notwithstanding the foregoing, the provisions of this Section 9.8(a) and Section 8.3(c), the last sentence of Section 9.4, Section 9.5, Section 9.6, the last sentence of Section 9.11 and Section 9.12 shall be enforceable by each Financing Source and each Financing Source shall be an intended third party beneficiary of this Section and such Sections and shall be entitled to enforce such provisions as if direct parties to this Agreement. The representations and warranties in this Agreement and the same extent that HoldCo would be required to perform if no such succession had taken placeindemnification obligations of Parent in Section 6.11(f) are the product of negotiations among the parties hereto and are for the sole benefit of the parties.
(b) A TRA Limited Partner No party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each of the other parties; provided that each of Parent and Merger Sub may (i) assign, by operation of law or otherwise, in whole or in part, this Agreement or any or all of its rights and obligations hereunder to one or more of its Affiliates and (ii) after the Closing, may assign any all of its rights under this Agreement for collateral security purposes to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinderFinancing Source; provided, further, that a TRA Limited Partner’s rights no such assignment shall (i) relieve such party of any of its obligations under this Agreement or (ii) be permitted if such assignment would reasonably be expected to prevent, impair or materially delay the consummation of the Merger and the other transactions contemplated hereby. Any assignment, delegation or transfer in violation of this Section 9.8 shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid ab initio.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Belk Inc)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No , and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo , other than: (i) with respect to the provisions of Section 7.02 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCothe holders of shares of Company Stock to receive the Merger Consideration in accordance with the terms and conditions of this Agreement, (iii) at and after the Effective Time, the rights of the holders of Company Stock Options and Company Restricted Stock to receive the payments contemplated by written agreementthe applicable provisions of Section 2.05, expressly to assume in each case, at the Effective Time in accordance with the terms and agree to perform conditions of this Agreement in and (iv) the same manner provisions of Section 11.04(e) and Section 11.04(f) shall inure to the same extent that HoldCo would benefit of, and shall be required to perform if no such succession had taken placeenforceable by, members of the Company Group and Parent Group, as the case may be.
(b) A TRA Limited Partner may assign Notwithstanding Section 11.06(a), (i) the Debt Financing Sources Related Parties are beneficiaries of any of its rights under liability cap or other limitation on remedies or damages in this Agreement to any Person as long as such transferee has executed that are for the benefit of Parent, including, without limitation, those set forth in Section 11.04(f) and delivered(ii) the Debt Financing Sources Related Parties are express third party beneficiaries of the provisions of Section 11.03(a), orSection 11.04(f), in connection with such transferSection 11.07, executes Section 11.08(b) and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b11.06(b) regardless of whether and may enforce such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRASections directly, and which becomes such Sections may not be amended, modified or supplemented by the parties hereto in a party manner materially adverse to this Agreement shall be considered a “TRA Limited Partner” for all purposes them without the express written consent of this Agreementthe Debt Financing Sources.
(c) GDH LP shall have the power and authority (but not the obligation) to permit No party may assign, delegate or otherwise transfer any Person who becomes a partner in GDH LP to execute and deliver a joinder to of its rights or obligations under this Agreement promptly upon acquisition without the consent of LP Units by such Person, each other party hereto.
(d) The representations and such Person shall be treated as a “TRA Limited Partner” warranties in this Agreement are the product of negotiations among the parties hereto and are for all purposes the sole benefit of this Agreementthe parties hereto.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and permitted assigns. No Except as provided in Article 2 and Section 7.03, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and permitted assigns. HoldCo ; provided that the Financing Sources (including any source of alternative financing that has been obtained in accordance with, and satisfies the conditions of, Section 7.05) shall require be intended third parties beneficiaries of Sections 11.04(e), 11.06, 11.08, 11.09 and cause 11.13(b)(v) and shall be entitled to enforce such provisions directly (and no amendment or modification to such provisions in respect to the Financing Sources (including any direct or indirect successor (whether by purchasesource of alternative financing that has been obtained in accordance with, mergerand satisfies the conditions of, consolidation or otherwiseSection 7.05) to all or substantially all may be made without the prior consent of the business or assets Financing Sources (including any source of HoldCoalternative financing that has been obtained in accordance with, by written agreementand satisfies the conditions of, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken placeSection 7.05)).
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement to any Person as long as such transferee has executed without the consent of each other party hereto, except that Parent or Merger Subsidiary may transfer or assign its rights and delivered, or, in connection with such transfer, executes and delivers, a joinder to obligations under this Agreement, in form whole or from time to time in part, to (i) one or more of Exhibit A, agreeing its Affiliates and/or to become a “TRA Limited Partner” any parties providing the Financing pursuant to the terms thereof (including for all purposes of this Agreementcreating a security interest herein or otherwise assign as collateral in respect of such Financing) at any time and (ii) after the Effective Time, except as otherwise to any Person; provided in that such joinder; providedtransfer or assignment shall not relieve Parent or Merger Subsidiary of its obligations hereunder or enlarge, that a TRA Limited Partner’s rights alter or change any obligation of any other party hereto or due to Parent or Merger Subsidiary. Any purported assignment not permitted under this Agreement Section 11.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall upon, inure solely to the benefit of the parties and be enforceable by each party hereto and their respective permitted successors and assigns. No provision of Nothing in this Agreement Agreement, express or implied is intended to or shall confer any rights, benefits, remedies, obligations or liabilities hereunder upon any other Person other than any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that, notwithstanding the parties hereto foregoing, (i) the past, present and future officers, directors and employees of the Acquired Companies (and their respective successors successors, heirs and assigns. HoldCo representatives) are intended third-party beneficiaries of, and may enforce, Section 6.07, (ii) from and after the Effective Time and the holders of shares of Company Common Stock shall require be intended third-party beneficiaries of, and cause any direct or indirect successor may enforce, Articles II and III, (whether by purchaseiii) the Financing Related Persons shall be intended third-party beneficiaries of, mergerand may enforce, consolidation or otherwise) to all or substantially all the Lender Protective Provisions and the rights of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and Parent Parties hereunder may be pledged to the same extent that HoldCo would Financing Related Provisions pursuant to the Debt Financing, (iv) the Parent Parties shall be required to perform if no such succession had taken placeshall be intended third-party beneficiaries of, and may enforce, Section 8.03(b) and (v) the Company Parties shall be shall be intended third-party beneficiaries of, and may enforce, Section 8.03(d).
(b) A TRA Limited Partner may assign Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Law or otherwise without the prior written consent of the other parties; provided that each of Parent and Merger Sub may transfer or assign its rights and obligations under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form whole or from time to time in part, to (a) one or more of Exhibit Aits Affiliates at any time and (b) after the Effective Time, agreeing to become a “TRA Limited Partner” for all purposes any Person; provided that any assignment by Parent or Merger Sub shall not relieve Parent or Merger Sub of its obligations hereunder. Any purported assignment in violation of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement Section 9.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties Parties hereto and their respective successors and assigns. No assigns and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties Parties hereto and their respective successors and assigns. HoldCo , other than: (i) with respect to the provisions of Section 7.04 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business Persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCothe holders of shares of Company Stock to receive the Merger Consideration in accordance with the terms and conditions of this Agreement, (iii) at and after the Effective Time, the rights of the holders of Company Equity Awards and Company Cash Incentive Awards to receive the payments contemplated by written agreementthe applicable provisions of Section 2.05, expressly to assume in each case, at the Effective Time in accordance with the terms and agree to perform conditions of this Agreement, and (iv) the rights of the Parent Related Parties under Section 11.04(g). The representations and warranties in this Agreement in are the same manner product of negotiations among the Parties hereto and to are for the same extent that HoldCo would be required to perform if no such succession had taken placesole benefit of the Parties hereto.
(b) A TRA Limited Partner No Party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other Party hereto, except that Parent or Merger Sub may, upon prior written notice to any Person as long as such transferee has executed the Company, transfer or assign its rights and delivered, or, in connection with such transfer, executes and delivers, a joinder to obligations under this Agreement, in form whole or from time to time in part, to one or more of Exhibit Atheir Affiliates at any time; provided that such transfer or assignment shall not (i) relieve Parent or Merger Sub of its obligations hereunder, agreeing (ii) enlarge, alter or change any obligation of any other Party hereto or due to become a “TRA Limited Partner” for all purposes Parent or Merger Sub or (iii) prevent, impair or delay the ability of this AgreementParent or Merger Sub to perform its obligations hereunder or prevent, except as otherwise provided in impair or delay the consummation of the Merger or the other transactions contemplated hereby. Any purported assignment, delegation or other transfer without such joinder; provided, that a TRA Limited Partner’s rights under this Agreement consent shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (AssetMark Financial Holdings, Inc.)
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall upon, inure solely to the benefit of the parties and be enforceable by each party hereto and their respective permitted successors and assigns. No provision Nothing in this Agreement, express or implied is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing, (i) the past, present and future officers, directors and employees of the Acquired Companies (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 6.08, (ii) from and after the Effective Time, the holders of shares of Company Common Stock and Company Compensatory Awards shall be intended third-party beneficiaries of, and may enforce, the right to receive Merger Consideration, Vested RSU Consideration, Unvested RSU Converted Cash Consideration, and Unvested PRSU Converted Cash Consideration, as applicable, pursuant to Article III, (iii) the Parent Parties shall be intended third-party beneficiaries of, and may enforce, Section 8.03(d), (iv) the Company Parties shall be intended third-party beneficiaries of, and may enforce, Section 8.02(y) and Section 8.03(d), and (v) if a court of competent jurisdiction has declined to grant specific performance, then the Company may seek damages (which the Parent Parties acknowledge and agree may include damages to the Company’s stockholders) on behalf of the holders of shares of Company Common Stock and Company Compensatory Awards (each of which are deemed third-party beneficiaries of this Agreement is intended to confer the extent required for this provision to be enforceable) subject to the limitations set forth in Section 8.03(d); provided, that in no event shall any such holder be entitled to directly enforce any of their rights, benefitsor any of Parent’s or Merger Sub’s obligations, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform under this Agreement in the same manner event of any such breach, but rather the Company shall have the sole and exclusive right to the same extent that HoldCo would be required to perform if no do so, as agent for such succession had taken placeholders.
(b) A TRA Limited Partner may assign Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Law or otherwise without the prior written consent of the other parties; provided, that each of Parent and Merger Sub may transfer or assign its rights and obligations under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form whole or from time to time in part, to (a) one or more of Exhibit Aits Affiliates at any time, agreeing (b) after the Effective Time, to become a “TRA Limited Partner” any Person and (c) for all collateral security purposes to any Persons providing financing to thereto pursuant to the terms thereof (including for purposes of this Agreement, except creating a security interest herein or otherwise assigning as otherwise provided collateral in respect of such joinderfinancing); provided, that a TRA Limited Partner’s any assignment by Parent or Merger Sub shall not relieve Parent or Merger Sub of its obligations hereunder; provided, further, that each of Parent and Merger Sub may transfer or assign its rights (but not its obligations) under this Agreement upon or following the Closing for collateral security purposes to any Debt Financing Source. Any purported assignment in violation of this Section 9.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Model N, Inc.)
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall upon, inure solely to the benefit of the parties and be enforceable by each party hereto and their respective permitted successors and assigns. No provision of Nothing in this Agreement Agreement, express or implied is intended to or shall confer any rights, benefits, remedies, obligations or liabilities hereunder upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing, (i) the former and present officers and directors of the Acquired Companies (and their successors, heirs and Representatives) are intended third-party beneficiaries of, and may enforce, Section 6.07, as provided therein from and after the Effective Time and (ii) from and after the Effective Time, the holders of shares of Company Common Stock (other than Rollover Holders) and holders of Company Compensatory Awards shall be intended third-party beneficiaries of Article III and (iii) Parent Affiliated Management Company and Corpay each shall be an intended third-party beneficiary of, and may enforce, Section 8.03(b). Notwithstanding the parties foregoing, each party hereto agrees that the Debt Financing Related Persons are express third party beneficiaries of, and may enforce, the agreements for their respective successors benefit in Section 8.03(e), Section 9.04, this Section 9.06(a), Section 9.07, Section 9.08, Section 9.09, Section 9.13 and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken placeSection 9.14.
(b) A TRA Limited Partner Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Applicable Law or otherwise without the prior written consent of the other parties. Any purported assignment in violation of this Section 9.06(b) shall be null and void. Notwithstanding the foregoing, this Agreement (and all rights, interests and obligations hereunder) may assign be assigned, in whole or in part, without the Company’s prior written consent, by (i) Merger Sub to any of its rights Affiliates that is a direct wholly owned Subsidiary of Parent or (ii) by Parent or Merger Sub for collateral security purposes to any Persons providing debt financing to Parent or Merger Sub pursuant to the terms thereof (including for purposes of creating a security interest herein or otherwise assigning as collateral in respect of such financing); provided that (A) no such assignment shall affect or relieve Parent or Merger Sub of their obligations under this Agreement and Parent and Merger Sub shall continue to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” remain liable for all purposes such obligations and liabilities and (B) such assignment would prevent, materially impede or materially delay, or would reasonably be expected to prevent, materially impede or materially delay, the Closing or the ability of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights Parent or Merger Sub to timely consummate the Merger and the other transactions contemplated hereby or perform its obligations under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreement.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall upon, inure solely to the benefit of the parties and be enforceable by each party hereto and their respective permitted successors and assigns. No provision of Nothing in this Agreement Agreement, express or implied is intended to or shall confer any rights, benefits, remedies, obligations or liabilities hereunder upon any other Person other than any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that, notwithstanding the parties hereto foregoing, (i) following the Effective Time, the Indemnified Persons are intended third-party beneficiaries of, and may enforce, Section 6.07, (ii) from and after the Effective Time, the holders of shares of Company Common Stock and holders of Company Compensatory Awards shall be intended third-party beneficiaries of, and may enforce, Articles II and III to receive their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all applicable portion of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and Merger Consideration subject to the same extent that HoldCo would be required terms therein, (iii) the Financing Related Persons are intended third-party beneficiaries of, and may enforce, the Lender Protective Provisions and (iv) CD&R is an express third-party beneficiary of any covenants granted herein with respect to perform if no such succession had taken placethe Confidentiality Agreement.
(b) A TRA Limited Partner may assign Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Law or otherwise without the prior written consent of the other parties, except that Parent or Merger Sub may, upon prior written notice to the Company, transfer or assign its rights and/or obligations under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form whole or from time to time in part, to one or more of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joindertheir Affiliates at any time; provided, that a TRA Limited Partner’s rights under such transfer or assignment shall not relieve Parent or Merger Sub of its obligations hereunder except to the extent actually performed by such transferee or assignee. Any purported assignment in violation of this Agreement Section 9.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall inure to the benefit of and be binding upon the parties hereto and their permitted successors and assigns. Except with respect to the provisions of: (i) Article VI, which shall inure to the benefit of each Purchaser Indemnitee and each Seller Indemnitee, (ii) Section 7.12, which shall inure to the benefit of each Non-Recourse Party, and (iii) Section 7.13, which shall inure to the benefit of the parties hereto and released Persons identified therein, all of whom are intended as express third-party beneficiaries thereof, no other Person not party to this Agreement (including any current or former employee of the Company, Seller, Purchaser or any of their respective successors and assigns. No provision Affiliates) shall be entitled to the benefits of this Agreement is intended or any other rights or remedies (including any right to confer employment or continued employment for any specified period or continued participation in any Employee Benefit Plan). Notwithstanding the foregoing, only Seller and Purchaser shall be entitled to assert claims pursuant to Article VI, and each of them shall assert any such claims on behalf of the other Seller Indemnitees or Purchaser Indemnitees, as applicable, when Seller or Purchaser, as applicable, deem appropriate.
(b) Neither this Agreement nor any of the rights, benefits, remedies, interests or obligations or liabilities hereunder upon shall be assigned by any Person other than of the parties hereto without the prior written consent of each of the other parties; provided, that Purchaser may assign its rights, interests and their respective successors and assigns. HoldCo shall require and cause obligations hereunder (i) to any direct or indirect successor wholly-owned Subsidiary of Purchaser or to any Affiliate of which Purchaser is a direct or indirect wholly-owned Subsidiary, (whether ii) in connection with the transfer by purchase, merger, consolidation or otherwise) to Purchaser of all or substantially all of the business or equity interests and/or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken place.
Company and/or (biii) A TRA Limited Partner may assign any of its rights under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form any financing of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinderthe transactions contemplated hereby; provided, further, that a TRA Limited Partner’s rights under this Agreement no such assignment by Purchaser pursuant to the foregoing clauses (i), (ii) or (iii) shall be assignable by such TRA Limited Partner under the procedure relieve Purchaser of its obligations hereunder. Any attempted assignment in violation of this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall 7.5 will be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall upon, inure solely to the benefit of the parties and be enforceable by each party hereto and their respective permitted successors and assigns. No provision of Nothing in this Agreement Agreement, express or implied is intended to or shall confer any rights, benefits, remedies, obligations or liabilities hereunder upon any other Person other than any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that, notwithstanding the parties hereto foregoing, (i) the past, present and future officers, directors and employees of the Acquired Companies (and their respective successors and assigns. HoldCo heirs) are intended third-party beneficiaries of, and may enforce, Section 7.04 applicable to such Persons and (ii) from and after the Effective Time, the holders of shares of Company Common Stock and holders of Company Compensatory Awards shall require be intended third-party beneficiaries of, and cause any direct or indirect successor may enforce, the rights of such Persons to receive the applicable Merger Consideration, Option Consideration and RS/RSU Consideration, as applicable, pursuant to and in accordance with Article III; (whether by purchaseiii) the Company Parties and Parent Parties are intended third-party beneficiaries with respect to Section 9.03; and (iv) the Financing Sources are hereby made express third-party beneficiaries of, mergerand shall be entitled to rely on this Section 10.06 and Section 10.04, consolidation or otherwise) to all or substantially all of the business or assets of HoldCoSection 10.07, by written agreementSection 10.08, expressly to assume Section 10.09 and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken placeSection 10.13.
(b) A TRA Limited Partner Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Applicable Law or otherwise without the prior written consent of the other parties, except that Merger Sub (or, after the Effective Time, the Surviving Corporation) may assign any or all of its rights under this Agreement rights, interests and obligations hereunder to one or more direct or indirect wholly owned Subsidiaries of Parent, or a combination thereof, and Parent shall have the right, without the prior written consent of the Company, to assign all or any Person as long as portion of its rights, interests and obligations hereunder to Verscend Holding or one or more Subsidiaries of Verscend Holding, provided that such transferee has executed assignment would not materially delay, impair or prevent consummation of the Merger and delivered, shall not relieve Parent or Merger Sub (or, after the Effective Time, the Surviving Corporation) of its obligations hereunder. Any purported assignment in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes violation of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement Section 10.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, null and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have Notwithstanding the power and authority (but not the obligation) to permit foregoing, Parent or Merger Sub may assign any Person who becomes a partner in GDH LP to execute and deliver a joinder to or all of its rights or obligations under this Agreement promptly upon acquisition without prior written consent to any Financing Source (provided that any such assignment shall not relieve Parent or Merger Sub of LP Units by such Personits obligations hereunder) pursuant to the terms of the Financing (or any credit agreements, and such Person shall be treated as a “TRA Limited Partner” loan documents or indentures of Parent or Merger Sub or their Affiliates) for all purposes of this Agreementcreating a security interest herein or otherwise assigning collateral in respect of the Financing.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and, except (i) as provided in or contemplated by Section 7.02 and this Section 11.06, (ii) if the Closing occurs, for the right of the holders of Company Stock, Company RSUs, Company PSUs, Units or Company Warrants, respectively, to receive the consideration specified in this Agreement, in each case, after the Effective Time, and (iii) as provided in Section 10.03(c), shall inure to the benefit of the parties hereto and their respective successors and assigns. No Except as provided in Section 7.02 and this Section 11.06, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require Notwithstanding the foregoing, if NICE, Parent or Merger Subsidiary wrongfully terminates or willfully breaches this Agreement, then, following the termination of this Agreement, the Company may seek damages and cause any direct or indirect successor other relief (whether by purchase, merger, consolidation or otherwiseincluding equitable relief) to all or substantially all on behalf of the business holders of the Company Stock, Company RSUs, Company PSUs, Units or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken placeCompany Warrants.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement to any Person as long as such transferee has executed without the written consent of each other party hereto, except that Merger Subsidiary may transfer or assign its rights and delivered, or, in connection with such transfer, executes and delivers, a joinder to obligations under this Agreement, in form whole or from time to time in part, (i) by written notice to the Company, to a wholly-owned direct or indirect Subsidiary of Exhibit AParent, agreeing in which event all references herein to become a “TRA Limited Partner” for all purposes Merger Subsidiary, as applicable, shall be deemed references to such other Subsidiary; provided that any such assignment shall not materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement, except as Agreement or otherwise provided in such joinder; provided, that a TRA Limited Partner’s materially impair the rights of the Company under this Agreement shall be assignable by such TRA Limited Partner or relieve Parent of any of its obligations under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement and (ii) after the Effective Time, to any Person; provided that such transfer or assignment shall be considered a “TRA Limited Partner” for all purposes not relieve NICE, Parent or Merger Subsidiary of this Agreementits obligations hereunder or enlarge, alter or change any obligation of any other party hereto or due to Parent or Merger Subsidiary.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No , and subject to Section 11.06(c), no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo , other than: (i) with respect to the provisions of Section 7.04 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCothe holders of shares of Company Stock to receive the Merger Consideration in accordance with the terms and conditions of this Agreement, and (iii) at and after the Effective Time, the rights of the holders of Company Stock Options, Company Restricted Stock Awards or Company Restricted Stock Units to receive the payments contemplated by written agreementthe applicable provisions of Section 2.05, expressly to assume in each case, at the Effective Time in accordance with the terms and agree to perform conditions of this Agreement. The representations and warranties in this Agreement in are the same manner product of negotiations among the parties hereto and to are for the same extent that HoldCo would be required to perform if no such succession had taken placesole benefit of the parties hereto.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto.
(c) Notwithstanding anything in this Agreement to the contrary, each of (x) the Company and (y) solely with respect to clauses (i), (ii), (v), (vii), (viii) and (x), Parent and Merger Sub, in each case, on behalf of itself, its Subsidiaries and each of its controlled Affiliates hereby: (i) agrees that any Person as long as such transferee has executed and deliveredProceeding, orwhether in law or in equity, whether in contract or in tort or otherwise, involving the Financing Parties, arising out of or relating to, this Agreement, the Financing or any of the agreements entered into in connection with the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such transferProceeding to the exclusive jurisdiction of such court, executes and delivers, a joinder (ii) agrees that any such Proceeding shall be governed by the laws of the State of New York (without giving effect to this Agreement, any conflicts of law principles that would result in form the application of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes the laws of this Agreementanother state), except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party an applicable definitive document relating to the Original TRAFinancing, including (iii) waives any Person which was the assignee of claims or rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreement.
(c) GDH LP shall have the power and authority (but not the obligation) to permit against any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.Financing Parties relating 70 #92864921v30
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto Parties and their respective successors and assigns. No , and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto Parties and their respective successors and assigns. HoldCo , other than: (i) with respect to the provisions of Section 7.04 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCothe holders of shares of Company Stock to receive the Merger Consideration in accordance with the terms and conditions of this Agreement, and (iii) at and after the Effective Time, the rights of the holders of Company Stock Options, Company Restricted Shares, Company Performance Shares, Company Restricted Stock Unit Awards, Company Performance Stock Unit Awards, Company Share Units and Deferred Stock Units to receive the payments contemplated by written agreementthe applicable provisions of Section 2.05. Notwithstanding the foregoing, expressly to assume the Financing Sources shall be express third-party beneficiaries of Sections 10.01, 11.03(a), 11.04(e), 11.04(f), 11.04(g), 11.07, 11.08, 11.09, 11.12 and agree to perform this Section 11.06(a). The representations and warranties in this Agreement in are the same manner product of negotiations among the Parties and to are for the same extent that HoldCo would be required to perform if no such succession had taken placesole benefit of the Parties.
(b) A TRA Limited Partner No Party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other Parties; provided, however, that, prior to the Closing, Parent or Merger Subsidiary may (i) assign all (but not less than all) of its rights or obligations hereunder to a wholly-owned (direct or indirect) subsidiary of Parent or Merger Subsidiary or any Affiliate of Parent or Merger Subsidiary, provided that no such assignment shall relieve the assigning Party of its obligations hereunder, and (ii) collaterally assign any or all of its rights, but not its obligations, under this Agreement to any Person as long as such transferee has executed and delivered, or, Lender. Nothing in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under prevent or otherwise impede the procedure in this Section 7.2(b) regardless transfer or other assignment of whether such TRA Limited Partner continues to hold any the equity interests in GDH LP Parent or HoldCo Merger Subsidiary (or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreement.
(c) GDH LP shall have the power and authority (but not the obligationboth) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this AgreementAffiliate thereof.
Appears in 1 contract
Sources: Merger Agreement (Zep Inc.)
Binding Effect; Benefit; Assignment. (a) The provisions of this This Agreement shall be binding upon and shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assignshereto. No provision of this Agreement Other than (a) Section 6.7 which is intended to confer any rightsbenefit the Indemnified Persons, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken place.
(b) A TRA Limited Partner may assign any of Section 6.14, which is intended to benefit W&C and its rights under this Agreement partners and employees and (c) Section 2.6(f), which is intended to any benefit the applicable Employee Bonus Recipients, no other Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a not party to this Agreement shall be considered a “TRA Limited Partner” for all purposes entitled to the benefits of this Agreement.
(c) GDH LP ; provided, however, that the Partnership shall have the power right, which right is hereby acknowledged by Parent and authority Merger Subs, to enforce the rights of GP Parent and the Sellers to (but not A) pursue damages on behalf of GP Parent and the obligation) to permit any Person who becomes a partner Sellers in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition the event of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes Parent or Merger Subs’ breach or wrongful termination of this Agreement, and (B) receive the Merger Consideration or any other amounts payable to GP Parent and the Sellers hereunder, in which event of either clause (A) or (B), the damages recoverable by the Partnership for itself and on behalf of GP Parent and the Sellers shall be determined by reference to the total amount that would have been recoverable by GP Parent and the Sellers if GP Parent and all such Sellers brought an action against Parent or Merger Subs and were recognized as intended third party beneficiaries hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties; provided, that (x) Parent may assign its rights and interests hereunder for the purpose of securing any financing of the transactions contemplated hereby and (y) the Sellers’ Representative may assign its rights and obligations under this Agreement to any of its Affiliates without prior written consent; provided, that no such assignment referred to in clauses (x) or (y) shall relieve Parent or the Sellers’ Representative of any of its obligations hereunder. Any attempted assignment in violation of this Section 10.6 shall be void. The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Section 10.2 without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, Persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.
Appears in 1 contract
Sources: Merger Agreement (Applied Industrial Technologies Inc)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and on and, except as provided in Section 7.02, shall inure to the benefit of the parties hereto and their respective successors and assigns. No Except (i) if the Effective Time occurs, the right of the Company Shareholders to receive the Merger Consideration in accordance with Article 2 and (ii) as provided in Section 7.02, Section 11.04(b)(iii) and Section 11.09, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all ; provided that the provisions of the business or assets second sentence in Section 11.03, this proviso of HoldCothis Section 11.06(a) Section 11.06(a), by written agreementSection 11.06(c), expressly to assume the provisions of the second sentence in Section 11.07, Section 11.08 and agree to perform this Agreement Section 11.10, in the same manner and each case, pertaining to the same extent that HoldCo would Financing Sources, are intended to be required to perform if no such succession had taken placefor the benefit of, and shall be enforceable by, the Financing Sources.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of each other party hereto, except that Parent or Merger Sub may transfer or assign its rights and obligations under this Agreement to a wholly owned Subsidiary of Parent (which will remain a wholly owned Subsidiary of Parent prior to Closing) without the consent of the Company; provided that (i) such transfer or assignment would not reasonably be expected to delay in any Person material respect or impair the consummation of the transactions contemplated hereby, (ii) Parent or Merger Sub, as long as such transferee has executed and deliveredthe case may be, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” shall remain liable for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights its obligations under this Agreement shall and (iii) the assignee will be assignable by such TRA Limited Partner under deemed to have made the procedure same representations and warranties as are set forth in Article 5 and any reference in this Section 7.2(b) regardless of whether such TRA Limited Partner continues Agreement to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For representation or warranty in Article 5 will be deemed to include the avoidance representations and warranties of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementassignee.
(c) GDH LP shall No Financing Source will have any liability to the power and authority Company, any former, current or future stockholders, equity holders, controlling persons, directors, officers, employees, general or limited partners, members, managers, agents or Affiliates of the Company (but not in each case, in their capacities as such), or any former, current or future stockholders, equity holders, controlling persons, directors, officers, employees, general or limited partners, members, managers, agents or Affiliates of any of the obligationforegoing (in each case, in their capacities as such) relating to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes or arising out of this Agreement, any Financing or otherwise, whether at law, or equity, in contract, in tort or otherwise, and Company will not have any rights or claims against any Financing Source or be entitled to seek the remedy of specific performance of this Agreement against any Financing Source (such Financing Sources being express third party beneficiaries of this sentence).
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No Except for (i) Section 8.08, which is expressly for the benefit of, and enforceable by, the Indemnified Persons, (ii) Sections 2.04, 2.09 and 2.11, Section 12.02 and Section 12.04, which are expressly for the benefit of, and enforceable by, the Equityholders and their Related Persons (as applicable) and (iii) the last sentence of Section 10.02(a), Section 10.02(b)(vii) and Section 13.12, which are expressly for the benefit of, and enforceable by, each party’s (as applicable) Related Persons for purposes of the limitations on liability set forth therein, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken place.
(b) A TRA Limited Partner Except as otherwise provided in the following sentences of this Section 13.05(b), no party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto. Notwithstanding the preceding sentence, the parties hereto acknowledge and agree that, prior to any Person as long as such transferee has executed the Closing, Buyer shall cause the formation of Merger Subsidiary and delivered, orshall cause Merger Subsidiary to execute a joinder agreement, in connection with form and substance reasonably satisfactory to the Company, pursuant to which Merger Subsidiary shall assume all of the obligations, and shall have all of the rights, of Merger Subsidiary hereunder; provided, that the execution of such transferagreement shall not relieve Buyer of any of the obligations of Buyer hereunder, executes and deliverspursuant to such execution Buyer shall retain all of the rights of Buyer hereunder. Additionally, a joinder to after the Effective Time, Buyer may transfer or assign its rights and obligations under this Agreement, in form of Exhibit Awhole or from time to time in part, agreeing to become a “TRA Limited Partner” for all purposes other than its obligations under Article 2, Section 8.07 and Section 8.08(a) of this Agreement, except as otherwise provided in such joinderto (i) one or more of its Affiliates or (ii) any other Person; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance transfer or assignment by Buyer shall not relieve Buyer of doubtits obligations hereunder or enlarge, alter or change any Person that was a obligation of any other party hereto or due to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this AgreementBuyer.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Amc Entertainment Holdings, Inc.)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and permitted assigns. No provision The provisions of Section 5.02 and, from and after the Effective Time, the provisions of Article 2 are intended to be for the benefit of, and shall be enforceable after the Effective Time by, the Persons referred to therein and their respective heirs and Representatives. The Surviving Corporation shall indemnify any Indemnified Person against all reasonable costs and expenses (including attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in Section 5.02(a), relating to the enforcement of such Indemnified Person’s rights under Section 5.02 regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification. Except as provided in the immediately preceding sentence, this Agreement is not intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto any rights or remedies hereunder; provided, however, that each Financing Source shall be an express third party beneficiary with respect to Sections 9.03, 9.06, 9.07, 9.08, 9.09, and 9.14. Notwithstanding the foregoing, in the event of Parent’s or Merger Sub’s fraud or Willful Breach, as a result of which damages would be payable, then the Company Stockholders, acting solely through the Company, shall be beneficiaries of this Agreement and shall be entitled to pursue any and all legally available remedies, including equitable relief, and to seek recovery of all losses, liabilities, damages, costs and expenses of every kind and nature, including reasonable attorneys’ fees; provided, however, that the rights granted pursuant to this sentence shall be enforceable only by the Company, on behalf of the Company Stockholders, in the Company’s sole discretion, it being understood and agreed that such rights shall attach to such shares of Company Common Stock and subsequently trade and transfer therewith and, consequently, any damages, settlements, or other amounts recovered or received by the Company with respect to such rights may, in the Company’s sole discretion, be (i) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any date determined by the Company or (ii) retained by the Company for the use and benefit of the Company on behalf of its stockholders in any manner the Company deems fit.
(b) No party may assign, delegate or otherwise transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement without the consent of each other party hereto; provided that Parent and Merger Sub, and their respective successors and permitted assigns. HoldCo shall require and cause , may assign, without the consent of any direct other Person or indirect successor (whether by purchaseparty, merger, consolidation any or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken place.
(b) A TRA Limited Partner may assign any of its rights under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder pursuant to this Agreement, in form and each of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRAother agreements and instruments contemplated hereby, including its rights to indemnification, to any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementits Financing Sources as collateral security.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken place.
(b) A TRA Limited Partner may assign any of its rights under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement shall be assignable by such TRA Limited Partner under the procedure in this Section Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreement.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Sources: Tax Receivables Agreement (Galaxy Digital Holdings Ltd.)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No , and subject to Section 11.06(c), no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo , other than: (i) with respect to the provisions of Section 7.04 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCothe holders of shares of Company Stock to receive the Merger Consideration in accordance with the terms and conditions of this Agreement, and (iii) at and after the Effective Time, the rights of the holders of Company Stock Options, Company Restricted Stock Awards or Company Restricted Stock Units to receive the payments contemplated by written agreementthe applicable provisions of Section 2.05, expressly to assume in each case, at the Effective Time in accordance with the terms and agree to perform conditions of this Agreement. The representations and warranties in this Agreement in are the same manner product of negotiations among the parties hereto and to are for the same extent that HoldCo would be required to perform if no such succession had taken placesole benefit of the parties hereto.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto.
(c) Notwithstanding anything in this Agreement to the contrary, each of (x) the Company and (y) solely with respect to clauses (i), (ii), (v), (vii), (viii) and (x), Parent and Merger Sub, in each case, on behalf of itself, its Subsidiaries and each of its controlled Affiliates hereby: (i) agrees that any Person as long as such transferee has executed and deliveredProceeding, orwhether in law or in equity, whether in contract or in tort or otherwise, involving the Financing Parties, arising out of or relating to, this Agreement, the Financing or any of the agreements entered into in connection with the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such transferProceeding to the exclusive jurisdiction of such court, executes and delivers, a joinder (ii) agrees that any such Proceeding shall be governed by the laws of the State of New York (without giving effect to this Agreement, any conflicts of law principles that would result in form the application of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes the laws of this Agreementanother state), except as otherwise provided in such joinder; providedan applicable definitive document relating to the Financing, that a TRA Limited Partner’s (iii) waives any claims or rights under against any Financing Parties relating to or arising out of this Agreement shall be assignable by such TRA Limited Partner under the procedure Agreement, whether at law or in this Section 7.2(b) regardless of equity, whether such TRA Limited Partner continues to hold any interests in GDH LP contract or HoldCo in tort or has fully transferred any such interests. For otherwise (provided that, for the avoidance of doubt, this clause (iii) shall not apply with respect to any Person claims or rights of the parties to any debt commitment letters or engagement letters, none or which rights are or shall be impaired hereby), (iv) agrees not to bring or support, or permit any of its Affiliates or Representatives to bring or support, any Proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Financing Party in any way arising out of or relating to, this Agreement, the Financing, or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise (provided that, for the avoidance of doubt, this clause (iv) shall not apply with respect to any claims or rights of the parties to any debt commitment letters or engagement letters, none or which rights are or shall be impaired hereby), (v) agrees that was a party service of process in any such Proceeding shall be effective if notice is given in accordance with Section 11.01, (vi) agrees that no Financing Party shall be responsible for any indirect, incidental, special, punitive, exemplary or consequential damages in connection with this Agreement, (vii) irrevocably waives, to the Original TRAfullest extent that it may effectively do so, including the defense of an inconvenient forum to the maintenance of such Proceeding in any Person which was such court, (viii) knowingly, intentionally and voluntarily waives to the assignee fullest extent permitted by Applicable Law trial by jury in any Proceeding brought against the Financing Parties in any way arising out of rights under or relating to, this Agreement, the Original TRAFinancing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, and which becomes a party (ix) agrees that none of the Financing Parties will have any liability to this Agreement shall be considered a “TRA Limited Partner” for all purposes the Company or any of its Subsidiaries or any of their respective Affiliates or Representatives (in each case, other than Parent or its Subsidiaries) relating to or arising out of this Agreement.
, the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise and (cx) GDH LP shall have agrees that the power Financing Parties are express third party beneficiaries of, and authority (but not may enforce, the obligation) to permit provisions in this Section 11.06(c), Section 11.07, Section 11.08 and Section 11.09, and that such provisions and any Person who becomes a partner related definition used in GDH LP to execute and deliver a joinder to such sections or any provision of this Agreement promptly upon acquisition to the extent an amendment, modification, waiver or termination of LP Units by such Personprovision would modify the substance of such sections and/or such provisions, and such Person shall not be treated as a “TRA Limited Partner” for all purposes amended, modified, waived or terminated in any way adverse to the Financing Parties without the prior written consent of this Agreementthe Financing Entities of the Financing Parties.
Appears in 1 contract
Sources: Merger Agreement (Intl Fcstone Inc.)
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and on and, except as provided in Section 7.02, shall inure to the benefit of the parties hereto and their respective successors and assigns. No Except (i) if the Effective Time occurs, the right of the Company Shareholders to receive the Merger Consideration in accordance with Article 2 and (ii) as provided in Section 7 .02, Section 11.04(b)(iii) and Section 11.09, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all ; provided that the provisions of the business or assets second sentence in Section 11.03, this proviso of HoldCothis Section 11.06(a)Section 11.06(a), by written agreementSection 11.06(c), expressly to assume the provisions of the second sentence in Section 11.07, Section 11.08 and agree to perform this Agreement Section 11.10, in the same manner and each case, pertaining to the same extent that HoldCo would Financing Sources, are intended to be required to perform if no such succession had taken placefor the benefit of, and shall be enforceable by, the Financing Sources.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of each other party hereto, except that Parent or Merger Sub may transfer or assign its rights and obligations under this Agreement to a wholly owned Subsidiary of Parent (which will remain a wholly owned Subsidiary of Parent prior to Closing) without the consent of the Company; provided that (i) such transfer or assignment would not reasonably be expected to delay in any Person material respect or impair the consummation of the transactions contemplated hereby, (ii) Parent or Merger Sub, as long as such transferee has executed and deliveredthe case may be, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form of Exhibit A, agreeing to become a “TRA Limited Partner” shall remain liable for all purposes of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights its obligations under this Agreement shall and (iii) the assignee will be assignable by such TRA Limited Partner under deemed to have made the procedure same representations and warranties as are set forth in Article 5 and any reference in this Section 7.2(b) regardless of whether such TRA Limited Partner continues Agreement to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For representation or warranty in Article 5 will be deemed to include the avoidance representations and warranties of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementassignee.
(c) GDH LP shall No Financing Source will have any liability to the power and authority Company, any former, current or future stockholders, equity holders, controlling persons, directors, officers, employees, general or limited partners, members, managers, agents or Affiliates of the Company (but not in each case, in their capacities as such), or any former, current or future stockholders, equity holders, controlling persons, directors, officers, employees, general or limited partners, members, managers, agents or Affiliates of any of the obligationforegoing (in each case, in their capacities as such) relating to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes or arising out of this Agreement, any Financing or otherwise, whether at law, or equity, in contract, in tort or otherwise, and Company will not have any rights or claims against any Financing Source or be entitled to seek the remedy of specific performance of this Agreement against any Financing Source (such Financing Sources being express third party beneficiaries of this sentence).
Appears in 1 contract
Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No , and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo , other than: (i) with respect to the provisions of Section 7.04 which shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) inure to all or substantially all the benefit of the business persons or assets entities benefiting therefrom who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of HoldCothe holders of shares of Company Stock to receive the Merger Consideration in accordance with the terms and conditions of this Agreement, (iii) at and after the Effective Time, the rights of the holders of Company Equity Awards to receive the payments contemplated by written agreementthe applicable provisions of Section 2.04, expressly in each case, at the Effective Time in accordance with the terms and conditions of this Agreement, (iv) prior to assume the Effective Time, the rights of the holders of Common Stock to pursue claims for damages and agree other relief, including equitable relief, for Parent’s or Merger Subsidiary’s breach of this Agreement; provided, however, that the rights granted to perform the holders of Common Stock pursuant to the foregoing clause (iv) of this Section 11.06(a) shall only be enforceable on behalf of such holders by the Company in its sole and absolute discretion and (v) the Financing Source Related Parties (who shall be third party beneficiaries of, and entitled to enforce, this Section 11.06(a)(v) and Section 10.02, 11.03(c), 11.08(c), 11.09 and 11.13(e)). The representations and warranties in this Agreement in are the same manner product of negotiations among the parties hereto and to are for the same extent that HoldCo would be required to perform if no such succession had taken placesole benefit of the parties hereto.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto, except that each of Parent and Merger Subsidiary may assign, in its sole discretion, any of or all of its rights, interest and obligations under this Agreement to Parent (in the case of Merger Subsidiary) or to any Person as long as such transferee has executed and delivered, or, direct or indirect wholly owned subsidiary of Parent (in connection with such transfer, executes and delivers, a joinder to this Agreement, in form the case of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes of this Agreement, except as otherwise provided in such joinderParent or Merger Subsidiary); provided, that a TRA Limited Partner’s rights under this Agreement no such assignment shall relieve Parent or Merger Subsidiary of any liability; provided, further, that, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), no such assignment shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party made to the Original TRA, including extent the assignment would be reasonably likely to give rise to additional withholding Tax obligations with respect to any Person which was the assignee of rights payments made under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreement.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Chemtura CORP)
Binding Effect; Benefit; Assignment. (a) The Subject to Section 11.06(b), the provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No Except (i) as provided in Section 7.03, Section 10.02 or Section 11.04(c) and (ii) for the right of the Company, on behalf of its stockholders, to pursue damages (which the parties acknowledge and agree shall include damages based on the benefit of the bargain lost by the Company’s stockholders, which shall be deemed in such event to be damages of the Company) and other relief, including equitable relief, for Parent’s or Merger Sub’s breach of this Agreement, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. HoldCo shall require , and cause other than, from and after the Effective Time, the right of any direct or indirect successor (whether by purchaseholders of shares of Company Common Stock, merger, consolidation or otherwise) Company Options and Company RSUs to all or substantially all of receive the business or assets of HoldCo, by written agreement, expressly to assume and agree to perform this Agreement Merger Consideration in the same manner and to the same extent that HoldCo would be required to perform if no such succession had taken placerespect thereof.
(b) A TRA Limited Partner No party may assign assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto; provided, however, that Parent and Merger Sub may (a) assign any or all of their rights and obligations under this Agreement to any Person as long as Affiliate of Parent, provided that no such transferee has executed assignment shall relieve Parent of its obligations hereunder or prevent, delay or impair the transactions contemplated hereby or (b) collaterally assign, without the Company’s or any other parties consent, any or all of the Parent’s or Merger Sub’s rights and deliveredobligations hereunder to any party providing the Debt Financing, or, which party may exercise all of the rights and remedies of Parent or Merger Sub hereunder in connection with the enforcement of any security or exercise of any remedies to the extent permitted under the Debt Financing arrangements, provided that no such transferassignment shall relieve Parent or Merger Sub of their respective obligations hereunder. Any purported assignment, executes and delivers, a joinder to this Agreement, delegation or other transfer in form of Exhibit A, agreeing to become a “TRA Limited Partner” for all purposes contravention of this Agreement, except as otherwise provided in such joinder; provided, that a TRA Limited Partner’s rights under this Agreement Section 11.06(b) shall be assignable by such TRA Limited Partner under the procedure in this Section 7.2(b) regardless of whether such TRA Limited Partner continues to hold any interests in GDH LP or HoldCo or has fully transferred any such interests. For the avoidance of doubt, any Person that was a party to the Original TRA, including any Person which was the assignee of rights under the Original TRA, and which becomes a party to this Agreement shall be considered a “TRA Limited Partner” for all purposes of this Agreementvoid.
(c) GDH LP shall have the power and authority (but not the obligation) to permit any Person who becomes a partner in GDH LP to execute and deliver a joinder to this Agreement promptly upon acquisition of LP Units by such Person, and such Person shall be treated as a “TRA Limited Partner” for all purposes of this Agreement.
Appears in 1 contract