Equityholder Representative. 10.15.1. As an integral component of the terms and conditions of this Agreement and the Merger, the Equityholder Representative is hereby irrevocably constituted, appointed, authorized, directed and empowered, effective as of the Effective Time, to act as sole and exclusive agent, attorney-in-fact and representative of the Equityholders, with full power of substitution, for all purposes in connection with this Agreement and each agreement ancillary hereto. 10.15.2. A decision, act, consent or instruction of the Equityholder Representative hereunder will constitute a decision, act, consent or instruction of all Equityholders and will be final, binding and conclusive upon each of such Equityholders, and the Escrow Agent, Payments Administrator, Parent, Merger Sub and Surviving Corporation may rely upon any such decision, act, consent or instruction of the Equityholder Representative as being the decision, act, consent or instruction of each and every such Equityholder. 10.15.3. The Equityholder Representative will have the right to recover, at its sole discretion, from the Representative Fund Amount (such amounts in the account, at any given time, the “Representative Fund”), prior to any distribution to the Equityholders, (i) the Equityholder Representative’s out-of-pocket expenses (including fees and expenses of counsel, accountants or other agents or experts) incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 10.15.5. In the event the amount of the Representative Fund available to satisfy Representative Expenses (the “Remaining Fund Property”) is insufficient to satisfy all Representative Expenses, then each Equityholder will be obligated to pay the Representative Expenses in excess of the Remaining Fund Property (or, at the election of the Equityholder Representative, such excess amount may be deducted from any release to such Equityholders from the Escrow Amount). Any release of the Representative Fund shall be made (i) to the Payments Administrator to be distributed to the Stockholders in accordance with their respective Pro Rata Shares and (ii) to the Surviving Corporation to be distributed to the Optionholders in accordance with their respective Pro Rata Shares through the Surviving Corporation’s payroll system in accordance with Section 3.2.4 but not later than thirty days following the date or dates on which any amount becomes due and payable. The Equityholders will not receive any interest or earnings on the Representative Fund and irrevocably transfer and assign to the Equityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Equityholder Representative will not be liable for any loss of principal of the Representative Fund other than as a result of its gross negligence or willful misconduct. The Equityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For Tax purposes, the Representative Fund will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing. 10.15.4. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Equityholder Representative hereunder, (i) the Equityholder Representative shall incur no responsibility or liability whatsoever to any of the Equityholders by reason of any error in judgment or other act or omission performed or omitted hereunder or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents gross negligence or willful misconduct, (ii) the Equityholder Representative shall not be liable to the Equityholders for any apportionment or distribution of payments made by the Equityholder Representative in good faith, and (iii) the Equityholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Equityholder Representative pursuant to such advice shall in no event subject the Equityholder Representative to liability to any of the Equityholders. 10.15.5. Each Equityholder shall indemnify, defend and hold harmless the Equityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Expenses”) arising out of or in connection with the Equityholder Representative’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Expense is suffered or incurred; provided, that in the event that any such Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Equityholder Representative, the Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Equityholder Representative by the Equityholders, any such Representative Expenses may be recovered by the Equityholder Representative from (i) the Representative Fund Amount, (ii) any funds from the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Equityholder Representative to be paid from the Representative Fund Amount and the Escrow Amount, this does not relieve the Equityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Equityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Equityholder Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Any restrictions or limitations on indemnity or liability set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative in this paragraph. The foregoing indemnities will survive the Closing, the resignation or removal of the Equityholder Representative or the termination of this Agreement. 10.15.6. The Equityholder Representative may be removed at any time by written consent of a majority-in-interest of the Equityholders. In the event that the Equityholder Representative becomes unable or unwilling to continue in its capacity as Equityholder Representative, or if the Equityholder Representative resigns as the Equityholder Representative, a majority-in-interest of the Equityholders may, by written consent, appoint a new representative as the Equityholder Representative. Notice and a copy of any written consent removing such existing representative or appointing such new representative and bearing the signatures of a majority-in-interest of the Equityholders must be delivered to Parent and, if applicable, the Escrow Agent and Payments Administrator. Such removal or appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and, if applicable, the Escrow Agent and Payments Administrator. For the purposes of this Section 10.15, a “majority-in-interest of the Equityholders” means Equityholders representing in the aggregate a Pro Rata Share of greater than 50%. 10.15.7. Following the Closing, any payments to be made to the Stockholders at any time that the Payments Agreement is not in effect shall be made to such Stockholders as directed by the Equityholder Representative. 10.15.8. Notwithstanding anything to the contrary contained in this Agreement or any Escrow Agreement, no Equityholder shall have any right to, or any interest or claim relating to the Escrow Amount or Representative Fund unless and until it has been finally determined in accordance with the terms and conditions of this Agreement or the Escrow Agreement that such funds or other property are to be distributed to such Equityholder in accordance with the terms and conditions of this Agreement or the Escrow Agreement, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Allstate Corp)
Equityholder Representative. 10.15.1. As an integral component (a) Each Letter of Transmittal shall provide that SBF II Representative Corp. shall be the terms agent and conditions of this Agreement and the Merger, the Equityholder Representative is hereby irrevocably constituted, appointed, authorized, directed and empowered, effective as of the Effective Time, to act as sole and exclusive agent, attorney-in-fact and representative for each of the EquityholdersEquityholders (in such capacity, the “Equityholder Representative”) to act as the Equityholder Representative under this Agreement and the Ancillary Documents in accordance with the terms of this Section 10.1 and the Ancillary Documents, and each Letter of Transmittal shall provide that the Equityholder Representative shall be the agent and attorney-in-fact for each of the Equityholders as provided herein. In the event of the resignation of the Equityholder Representative, a successor Equityholder Representative, appointed by the resigning Equityholder Representative and reasonably satisfactory to Parent, shall thereafter be appointed by an instrument in writing signed by Parent and such successor Equityholder Representative.
(b) The Equityholder Representative is hereby (and each Letter of Transmittal shall provide that the Equityholder Representative is) authorized and empowered to act for, and on behalf of, any or all of the Equityholders (with full power of substitutionsubstitution in the premises) in connection with (i) the purchase price adjustment set forth in Section 2.8, and (ii) such other matters as are reasonably necessary for the consummation of the Contemplated Transactions including (A) to receive or direct the receipt or distribution of all payments owing to the Equityholders under this Agreement, (B) to withhold any amounts received on behalf of the Equityholders in order to satisfy any actual or potential liabilities of the Equityholders under this Agreement, (C) to make any payments on behalf of the Equityholders and collect from the Equityholders (in accordance with each Equityholder’s Pro Rata Portion) any amounts paid in settlement of any claims under this Agreement, (D) to terminate, amend, waive any provision of, or abandon, this Agreement or any of the Ancillary Documents, (E) to act as the representative of the Equityholders to review and authorize all claims and disputes or question the accuracy thereof, (F) to negotiate and compromise on their behalf with Parent any claims asserted hereunder and to authorize payments to be made with respect thereto, (G) to directly or indirectly distribute (or direct the distribution of) any payments to Equityholders as contemplated by this Agreement, (H) to take such further actions as are authorized in this Agreement or the Ancillary Documents, and (I) in general, do all things and perform all acts, including executing and delivering all agreements (including the Ancillary Documents), certificates, receipts, consents, elections, instructions and other documents contemplated by or deemed by the Equityholder Representative to be necessary or desirable in connection with this Agreement, the Ancillary Documents and the Contemplated Transactions, and (iii) any claim for indemnification pursuant to ARTICLE VIII. Parent and Merger Sub shall be entitled to rely on such appointment and to treat the Equityholder Representative as the duly appointed attorney-in-fact of each Equityholder. Notices given to the Equityholder Representative in accordance with the provisions of this Agreement shall constitute notice to the Equityholders for all purposes under this Agreement. The Equityholder Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, the Letters of Transmittal and the Ancillary Documents, and no implied covenants, agreements, functions, duties, responsibilities, obligations or liabilities shall be read into this Agreement, the Letters of Transmittal, or the Ancillary Documents or shall otherwise exist against the Equityholder Representative.
(c) The appointment of the Equityholder Representative is an agency coupled with an interest and is irrevocable and any action taken by the Equityholder Representative pursuant to the authority granted in this Section 10.1 shall be effective and absolutely binding on each Equityholder notwithstanding any contrary action of or direction from such Equityholder, except for actions or omissions of the Equityholder Representative constituting actual fraud, and the death or incapacity, or dissolution or other termination of existence, of any Equityholder shall not terminate the authority and agency of the Equityholder Representative, and each Letter of Transmittal shall provide for the foregoing. Parent, Merger Sub and any other party to an Ancillary Document in dealing with the Equityholder Representative may conclusively rely, without inquiry, upon any act of the Equityholder Representative as the act of the Equityholders.
(d) The Equityholder Representative shall be (and each Letter of Transmittal shall provide that the Equityholder Representative shall be) released from, and indemnified against, any liability for any action taken or not taken by the Equityholder Representative in its capacity as such (including the expenses referred to in Section 10.1(e)), except to the extent that the Equityholder Representative is liable to any Equityholder for loss which such Equityholder actually suffers resulting from or arising out of actual fraud or willful misconduct on the part of the Equityholder Representative in carrying out its duties hereunder. The Equityholder Representative shall not be (and each Letter of Transmittal shall provide that the Equityholder Representative shall not be) liable to any Equityholder or to any other Person, with respect to any action taken or omitted to be taken by the Equityholder Representative in its role as the Equityholder Representative under or in connection with this Agreement and each agreement ancillary hereto.
10.15.2. A decisionor any Ancillary Document, act, consent unless such action or instruction omission results from or arises out of actual fraud or willful misconduct on the Equityholder Representative hereunder will constitute a decision, act, consent or instruction of all Equityholders and will be final, binding and conclusive upon each of such Equityholders, and the Escrow Agent, Payments Administrator, Parent, Merger Sub and Surviving Corporation may rely upon any such decision, act, consent or instruction of the Equityholder Representative as being the decision, act, consent or instruction of each and every such Equityholder.
10.15.3. The Equityholder Representative will have the right to recover, at its sole discretion, from the Representative Fund Amount (such amounts in the account, at any given time, the “Representative Fund”), prior to any distribution to the Equityholders, (i) the Equityholder Representative’s out-of-pocket expenses (including fees and expenses of counsel, accountants or other agents or experts) incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 10.15.5. In the event the amount of the Representative Fund available to satisfy Representative Expenses (the “Remaining Fund Property”) is insufficient to satisfy all Representative Expenses, then each Equityholder will be obligated to pay the Representative Expenses in excess of the Remaining Fund Property (or, at the election part of the Equityholder Representative, such excess amount may be deducted from any release to such Equityholders from the Escrow Amount). Any release of the Representative Fund shall be made (i) to the Payments Administrator to be distributed to the Stockholders in accordance with their respective Pro Rata Shares and (ii) to the Surviving Corporation to be distributed to the Optionholders in accordance with their respective Pro Rata Shares through the Surviving Corporation’s payroll system in accordance with Section 3.2.4 but not later than thirty days following the date or dates on which any amount becomes due and payable. The Equityholders will not receive any interest or earnings on the Representative Fund and irrevocably transfer and assign to the Equityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Equityholder Representative will not be liable for any loss of principal of the Representative Fund other than as a result of its gross negligence or willful misconduct. The Equityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For Tax purposes, the Representative Fund will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing.
10.15.4. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Equityholder Representative hereunder, (i) the Equityholder Representative shall incur no responsibility or liability whatsoever to any of the Equityholders by reason of any error in judgment or other act or omission performed or omitted hereunder or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents gross negligence or willful misconduct, (ii) the Equityholder Representative shall not be liable to any Equityholder in the Equityholders event that, in the exercise of its reasonable judgment, the Equityholder Representative believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by Parent or Merger Sub against the Equityholders. Parent and Merger Sub acknowledge and agree that the Equityholder Representative is party to this Agreement solely for purposes of serving as the “Equityholder Representative” and that any covenant or agreement that requires performance by the “Parties” or a “Party” at or prior to the Closing shall not be deemed to require performance by the Equityholder Representative unless performance by the Equityholder Representative is expressly provided for in such covenant or agreement.
(e) The Equityholder Representative shall receive no compensation for service as such but shall receive reimbursement from, and be indemnified from, the Equityholder Representative Expense Amount, by the Equityholders, in accordance with each Equityholder’s Pro Rata Portion, for any apportionment or distribution of payments made and all expenses, charges and liabilities, including, but not limited to, reasonable attorneys’ fees (collectively, the “Equityholder Representative Expenses”), incurred by the Equityholder Representative in good faiththe performance or discharge of its duties set forth in this Section 10.1. If the amount of the Equityholder Representative Expense Amount is less than the Equityholder Representative Expenses, each Equityholder shall pay (and shall agree in its respective Letter of Transmittal to pay, or cause to be paid) to the Equityholder Representative an amount equal to the product of (iiii) such Equityholder’s Pro Rata Portion, multiplied by (ii) the difference between (A) the Equityholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, Expenses and any error in judgment or other act or omission of (B) the Equityholder Representative pursuant to such advice shall in no event subject Expense Amount. Promptly following the determination by the Equityholder Representative to liability to that all or any portion of the Equityholders.
10.15.5. Each Equityholder shall indemnify, defend and hold harmless amount then remaining in the Equityholder Representative from and against Expense Amount is no longer needed to pay any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Equityholder Representative Expenses, the Equityholder Representative shall disburse, or cause to be disbursed through the Paying Agent, the amount of such excess (the “Unused Equityholder Representative Expense Amount”) arising out as follows:
(i) to each Stockholder, with respect to each share of or in connection with the Equityholder Representative’s execution and performance of this Agreement and the agreements ancillary heretoCommon Stock, in each case as outstanding immediately prior to the Effective Time held by such Stockholder for which a Letter of Transmittal has been properly delivered to the Paying Agent, an amount equal to the Unused Equityholder Representative Expense is suffered or incurred; providedAmount Per Share (which amounts may be deposited to the Exchange Fund for further distribution by the Paying Agent);
(ii) to each holder of In-the-Cash Options, that in with respect to each share of Class B Common Stock underlying each of such Optionholder’s In-the-Cash Options (and for which a properly completed and duly executed Letter of Transmittal has been properly delivered to the event that any such Paying Agent), an amount equal to the Unused Equityholder Representative Expense is finally adjudicated Amount Per Share (which amount, for the avoidance of doubt, will be paid in cash and not in Topco Stock, and which payment shall be effected by way of payment to have been directly caused the Surviving Corporation or one of its Subsidiaries for payroll or other applicable payment processing by the gross negligence Surviving Corporation or willful misconduct one of its Subsidiaries and distribution at the Equityholder Representativenext administratively practicable payroll date to each such Optionholder); and
(iii) to each holder of In-the-Stock Options, with respect to each share of Class B Common Stock underlying each such In-the-Stock Option (and for which a properly completed and duly executed Letter of Transmittal has been properly delivered to the Paying Agent), a fraction of a share of Class B Topco Stock (and not cash) having a value equal to the Unused Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Expense Amount Per Share; provided that to the extent attributable to that after the delivery of such gross negligence or willful misconduct. If not paid directly shares of Topco Stock to the Equityholder Representative by the Equityholdersholders of In-the-Stock Options pursuant to this Section 10.1(e)(iii) such Optionholder would have received, any such Representative Expenses may be recovered by the Equityholder Representative from in respect of one (i1) the Representative Fund AmountIn-the-Stock Option, more than one (ii1) any funds from the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Equityholder Representative to be paid from the Representative Fund Amount and the Escrow Amount, this does not relieve the Equityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Equityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Equityholder Representative be required to advance its own funds on behalf share of the Equityholders or otherwise. Any restrictions or limitations on indemnity or liability set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative in this paragraph. The foregoing indemnities will survive the ClosingTopco Stock, the resignation or removal of the Equityholder Representative or the termination of this Agreement.
10.15.6. The Equityholder Representative may be removed at any time by written consent of a majority-in-interest of the Equityholders. In the event that the Equityholder Representative becomes unable or unwilling to continue in its capacity as Equityholder Representative, or if the Equityholder Representative resigns as the Equityholder Representative, a majority-in-interest of the Equityholders may, by written consent, appoint a new representative as the Equityholder Representative. Notice and a copy of any written consent removing such existing representative or appointing such new representative and bearing the signatures of a majority-in-interest of the Equityholders must be delivered to Parent and, if applicable, the Escrow Agent and Payments Administrator. Such removal or appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and, if applicable, the Escrow Agent and Payments Administrator. For the purposes provisions of this Section 10.15, a “majority-in-interest of the Equityholders” means Equityholders representing 10.1(e)(iii) shall be revised in the aggregate a Pro Rata Share of greater than 50%accordance with Section 10.1(f).
10.15.7. Following the Closing, any payments to be made to the Stockholders at any time that the Payments Agreement is not in effect shall be made to such Stockholders as directed by the Equityholder Representative.
10.15.8. (f) Notwithstanding anything to the contrary contained in Section 10.1(e), if any Option that was an In-the-Stock Option at the Closing becomes a Subsequent In-the-Cash Option as a result of the distribution of the Unused Equityholder Representative Expense Amount, then (x) the provisions of Section 10.1(e) (and all applicable related definitions in this Agreement or any Escrow Agreement) shall be revised, no Equityholder and (y) all calculations made in connection with Section 10.1(e) shall have any right to, or any interest or claim relating be adjusted to take into account the Escrow Amount or Representative Fund unless and until it has been finally determined in accordance effect of the additional In-the-Cash Options. Section 10.1(e) shall be applied with the terms effect that each Subsequent In-the-Cash Option shall be entitled to receive the appropriate portion of the Aggregate Merger Cash Consideration Per Share (as recalculated pursuant to this Section 10.1(f) taking into account the Unused Equityholder Representative Expense Amount Per Share, if any) that is in excess of the per share exercise price of such Subsequent In-the-Cash Option, it being understood that, applying this Section 10.1(f) and conditions after taking into account amounts previously received by Stockholders and holders of this Agreement or In-the-Cash Options and In-the-Stock Options, the payment of the Adjustment Escrow Agreement that such funds or other property are to Release Amount Per Share, if any, may be distributed to such Equityholder in accordance with the terms and conditions of this Agreement or the Escrow Agreement, as applicabledifferent for different Equityholders.
Appears in 1 contract
Equityholder Representative. 10.15.1. As an integral component 10.14.1 By voting in favor of the terms and conditions adoption of this Agreement and/or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Equityholder shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC, a Colorado limited liability company, as the Equityholder Representative is hereby irrevocably constituted, appointed, authorized, directed and empowered, effective as of the Effective Time, to act as sole and exclusive agent, attorney-in-fact and representative of the Equityholders, with full power of substitution, Closing for all purposes in connection with this Agreement and each agreement the agreements ancillary hereto.
10.15.2. 10.14.2 A decision, act, consent or instruction of the Equityholder Representative hereunder will constitute a decision, act, consent or instruction of all Equityholders and will be final, binding and conclusive upon each of such Equityholders, and the Escrow Agent, Payments Administrator, Parent, Merger Sub Paying Agent and Surviving Corporation Parent may rely upon any such decision, act, consent or instruction of the Equityholder Representative as being the decision, act, consent or instruction of each and every such Equityholder.
10.15.3. 10.14.3 The Equityholder Representative will have the right to recover, at its sole discretion, from the Representative Fund Amount (such amounts in the account, at incur no liability of any given time, the “Representative Fund”), prior kind with respect to any distribution to action or omission by the Equityholders, (i) Equityholder Representative in connection with the Equityholder Representative’s out-of-pocket expenses (including fees and expenses of counsel, accountants or other agents or experts) incurred in serving in that capacity and (ii) any amounts to which it is entitled services pursuant to the indemnification provision this Agreement and any agreements ancillary hereto, except in Section 10.15.5. In the event the amount of the Representative Fund available to satisfy Representative Expenses (the “Remaining Fund Property”) is insufficient to satisfy all Representative Expenses, then each Equityholder will be obligated to pay the Representative Expenses in excess of the Remaining Fund Property (or, at the election of liability directly resulting from the Equityholder Representative, such excess amount may be deducted from any release to such Equityholders from the Escrow Amount). Any release of the Representative Fund shall be made (i) to the Payments Administrator to be distributed to the Stockholders in accordance with their respective Pro Rata Shares and (ii) to the Surviving Corporation to be distributed to the Optionholders in accordance with their respective Pro Rata Shares through the Surviving Corporation’s payroll system in accordance with Section 3.2.4 but not later than thirty days following the date or dates on which any amount becomes due and payable. The Equityholders will not receive any interest or earnings on the Representative Fund and irrevocably transfer and assign to the Equityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Equityholder Representative will not be liable for any loss of principal of the Representative Fund other than as a result of its gross negligence or willful misconduct. The Equityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For Tax purposes, the Representative Fund will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing.
10.15.4. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Equityholder Representative hereunder, (i) the Equityholder Representative shall incur no responsibility or liability whatsoever to any of the Equityholders by reason of any error in judgment or other act or omission performed or omitted hereunder or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents gross negligence or willful misconduct, (ii) the Equityholder Representative shall not be liable to the Equityholders for any apportionment action or distribution of payments made by the Equityholder Representative in good faith, and (iii) the Equityholder Representative shall be entitled omission pursuant to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Equityholder Representative pursuant to such advice shall in no event subject the Equityholder Representative to liability to any of the Equityholders.
10.15.5. Each Equityholder shall The Equityholders will indemnify, defend and hold harmless the Equityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Expenses”) arising out of or in connection with the Equityholder Representative’s execution and performance of this Agreement and the any agreements ancillary hereto, in each case as such Representative Expense is suffered or incurred; provided, that in the event that any such Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Equityholder Representative, the Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Equityholder Representative by the Equityholders, any such Representative Expenses may be recovered by the Equityholder Representative from (i) the funds in the Representative Fund AmountAmount (provided that the Equityholder Representative shall recover any Representative Expenses from the Representative Fund Amount prior to seeking payment directly from the Equityholders), (ii) any funds from the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Equityholders, and (iii) any other funds that become payable to the Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Equityholder Representative to may be paid from the Representative Fund Amount and the Escrow Amountaforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Expenses Losses as they are suffered or incurred, nor does it prevent the Equityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Equityholder Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Any Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on indemnity liability or liability indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative in under this paragraphSection 10.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Equityholder Representative or the termination of this Agreement.
10.15.6. 10.14.4 The Equityholder Representative may be removed at any time by written consent of a majority-in-interest of the Equityholders. In the event that the Equityholder Representative becomes unable or unwilling to continue in its capacity as Equityholder Representative, or if the Equityholder Representative resigns as the Equityholder Representative, a majority-in-interest of the Equityholders may, by written consent, appoint a new representative as the Equityholder Representative. Notice and a copy of any written consent removing such existing representative or appointing such new representative and bearing the signatures of a majority-in-interest of the Equityholders must be delivered to Parent and, if applicable, the Escrow Agent and Payments AdministratorPaying Agent. Such removal or appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and, if applicable, the Escrow Agent and Payments Administrator. For the purposes of this Section 10.15, a “majority-in-interest of the Equityholders” means Equityholders representing in the aggregate a Pro Rata Share of greater than 50%Paying Agent.
10.15.7. 10.14.5 Following the Closing, any payments to be made to the Stockholders Equityholders at any time that the Payments Paying Agent Agreement is not in effect shall be made to such Stockholders Equityholders as directed by the Equityholder RepresentativeSurviving Entity.
10.15.8. 10.14.6 Notwithstanding anything to the contrary contained in this Agreement or any Escrow Ancillary Agreement, no Equityholder shall have any right to, or any interest or claim relating to the Escrow Amount or Representative Fund unless and until it has been finally determined in accordance with the terms and conditions of this Agreement or the Escrow Agreement that such funds or other property are to be distributed to such Equityholder in accordance with the terms and conditions of this Agreement or the Escrow Agreement, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Certara, Inc.)