Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived. (b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement. (c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party. (d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement. (e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. (f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement. (g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders). (h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mimecast LTD)
Representative. (a) In order to efficiently administer The Member Confirmations shall provide for the obligations specified in this Agreement appointment, authorization and efficiently represent empowerment of Genstar Capital Partners III, L.P. as representative (the interests “Representative”), for the benefit of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementMembers, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, exclusive agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue to act on behalf of the approval Members, in connection with and to facilitate the consummation of the transactions contemplated hereby, which include the power and authority:
(i) to execute and deliver such waivers and consents in connection with this Agreement and the Acquisition consummation of the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable;
(ii) as Representative, to enforce and no act protect the rights and interests of such Company Securityholder)the Members (including the Representative, that all actions taken by in its capacity as a Member) and to enforce and protect the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder rights and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action interests of the Representative taken arising out of or under or in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights any manner relating to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)each other agreement, renounces such Company Securityholder’s right document, instrument or certificate referred to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement herein or therein or the Escrow Agreement transactions provided for herein or therein, and to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholdersany Member, including asserting or pursuing any Action against Buyer, defending all indemnity claims pursuant to Article 9any third party Actions or Actions by Buyer or its Affiliates (including the Surviving Company), as the case may be, consenting to, compromising or settling all any such indemnity claimsActions, conducting negotiations with Buyer and its agents representatives regarding indemnity claimssuch Actions, dealing and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any Action initiated by Buyer or any other Person, or by any Federal, state or local Governmental Authority against the Representative and/or any of the Members and receive process on behalf of any or all of the Members in any such Action and compromise or settle on such terms as the Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action; (C) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; and (D) file and prosecute appeals from any decision, judgment or award rendered in any such Action, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions;
(iii) to refrain from enforcing any right of the Members or any of them and/or the Representative arising out of or under or in any manner relating to this Agreement or any other agreement, instrument or document in connection with the foregoing;
(iv) (A) to determine whether the conditions to closing in Article VII have been satisfied and to supervise the Closing (including waiving any such conditions if the Representative, in its sole discretion, determines that such waiver is appropriate); (B) to take any action that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with the termination of this Agreement; (C) to take any and all actions that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Company or the Members in connection with the transactions contemplated hereby; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(b) Buyer and the Company under this Agreement and shall have the Escrow Agreement with respect right to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have agreement entered into an engagement agreement with the Representative and all actions taken or omitted to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission be taken by the Representative in connection with the Representative’s services pursuant to this Agreement.
(c) The Members hereby agree to indemnify, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnifyprotect, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their its capacity as such) from and against its agents and other representatives ratably according to their Pro Rata Shares, and to hold the Representative (in its capacity as such) and its agents and other representatives harmless from, any and all lossesLosses or Actions of whatever kind which may at any time be imposed upon, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs incurred by or asserted against the Representative and expenses (including the fees its agents and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) other representatives in such capacity in any way relating to or arising out of its action or failures to take action pursuant to this Agreement or any related document or agreement or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, herewith or therewith in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementcapacity.
(ed) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an entitled to retain counsel and to incur such expenses as converted basis) as of immediately prior to the Closing. If the Representative is unable deems to perform his, her be necessary or appropriate in connection with its performance of its obligations under this Agreement or, (including engaging an affiliated or third-party trust or escrow service to assist in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases administrative tasks required to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) be performed by the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documentshereunder), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents fees and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges expenses (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company reasonable attorneys’ fees and its Subsidiaries) under this Agreement or any applicable Law, expenses and (y) the reasonable out-of-pocket fees and expenses of Buyer and its Subsidiaries any trust or escrow service) incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will shall be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined borne by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders Members in accordance with their respective Pro Rata Shares. and Without limiting the agreements ancillary hereto. For tax purposesforegoing, the Representative Expense Fund will be treated as having been received shall have the right and voluntarily set aside by power to use the Company Securityholders at Reserve Account to pay, or reimburse the time of ClosingRepresentative and its Affiliates for, any such fees and expenses.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Blount International Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement The Company hereby irrevocably constitutes and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition appoints ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (and no act of such Company Securityholder“Tyler”), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative. As such, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation Tyler is authorized to act on behalf of the Company Securityholdersin connection with the transactions contemplated by the Transaction Documents, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreementparticular, and for purposes of claritywithout limitation, there are no obligations to:
(i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of the Representative Members) and make any and all determinations which may be required or permitted in any ancillary agreement, schedule, exhibit or connection with the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorneypost-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval closing implementation of this Agreement and related agreements and the Acquisition transactions contemplated hereby and thereby;
(ii) give and no act receive notices and communications thereunder;
(iii) negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes with Buyer and any other Buyer Indemnified Party arising out of such Company Securityholder)or in respect of the Transaction Documents, that all actions taken by the Representative under including, without limitation, claims and disputes pursuant to Sections 1.4 and 1.6 and Article VII of this Agreement;
(iv) receive all notices under the Transaction Documents;
(v) retain legal counsel, the Escrow Agreementaccountants, or the Representative Engagement Agreement shall be binding upon such Company Securityholder consultants and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderother experts, and incur any other reasonable expenses, in connection with all defenses which may be available matters and things set forth or necessary with respect to the Transaction Documents and the transactions contemplated hereby and thereby; and
(vi) to make any Company Securityholder other decision or election or exercise such rights, power and authority as are incidental to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedforegoing.
(b) The power Each of attorney the Members acknowledges and all authority conferred under agrees that upon execution of this Section 2.5 and the powersAgreement, immunities and rights to indemnification granted to upon any delivery by the Representative Group hereunder: (i) of any waiver, amendment, agreement, opinion, certificate or other document executed by the Representative, such Member shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, bound by such Company Securityholder’s death or disability or any other event documents as fully as if such Member had executed and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of delivered such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreementdocuments.
(c) Upon the death, disability or incapacity of the initial Representative appointed pursuant to Section 10.17(a), the Company shall appoint a successor Representative. The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which may resign at any time; provided, however, that it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of must provide the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act prior written notice of such Company Securityholder), each Company Securityholder grants the Representative full power and authority decision to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsresign. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partynot receive compensation for service in such capacity.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement Any and the Escrow Agreement (such Company Securityholdersall actions taken or not taken, including their individual representativesexercises of rights, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents power or authority and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action decision or omission determination made by the Representative in connection herewith shall be absolutely and irrevocably binding upon the Company as if the Company had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Buyer may rely upon such action, exercise of right, power, or authority or such decision or determination of the Representative as the action, exercise, right, power, or authority, or decision or determination of such Person, and the Company shall not have the right to object, dissent, protest or otherwise contest the same. Buyer is hereby relieved from any liability to any Person for any acts done by the Representative and any acts done by Buyer in accordance with any decision, act, consent or instruction of the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from .
(e) Each Member shall indemnify the Representative, in proportion to such Member’s willful misconduct or gross negligence. By virtue percentage ownership of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case as of the Advisory GroupClosing, in their capacity as such) 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 Losses”) Losses arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary heretoclaim or in connection with any appeal thereof, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated relating to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings withhereunder, and notices to and from, under the Representative to satisfy any obligations it might have under this Escrow Agreement or the Escrow Agreement.
(g) After the Closingotherwise, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period except for such Losses that arise from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its ’s gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Caesars Acquisition Co)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement or Shareholders approves the Escrow Agreement, by virtue designation of -------------- and designates ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the representative of the approval of this Agreement and Shareholders (the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder "Representative") and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors each Shareholder with respect to all matters arising the certification of Closing Stockholders' Equity under Section 1.5 hereof and claims for indemnification under this Agreement Article VIII and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated taking by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement any and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement all actions and the Acquisition (and no act making of such Company Securityholder), that all actions any decisions required or permitted to be taken by the Representative under this Agreement, including, without limitation, the Escrow Agreementexercise of the power to: (a) agree to, or the Representative Engagement Agreement shall be binding upon such Company Securityholder negotiate, enter into settlements and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholdercompromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (b) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (c) take all defenses which may be available to any Company Securityholder to contest, negate or disaffirm actions necessary in the action judgment of the Representative taken in good faith for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Shareholder with respect to the disposition, settlement or other handling of all claims under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney Article VIII and all authority conferred rights or obligations arising under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow AmountArticle VIII. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to Shareholders will be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party actions taken and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission documents executed by the Representative in connection with Article VIII, and DoveBid will be entitled to rely on any action or decision of the Representative’s services pursuant to . In performing the functions specified in this Agreement, and the Representative will not be liable to any agreements ancillary hereto while acted Shareholder in good faith, except for liability directly resulting from the absence of gross negligence or willful misconduct on the part of the Representative’s . The Shareholders shall severally indemnify the Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or willful misconduct or gross negligence. By virtue on the part of the approval of this Agreement Representative and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution acceptance or administration of his duties hereunder. Any out-of-pocket costs and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be reasonably incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement connection with actions taken by the Representative pursuant to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting terms of Article VIII (including without limitation the recourse against non-parties, otherwise applicable to hiring of legal counsel and the Company Securityholders set forth elsewhere in this Agreement are not intended to incurring of legal fees and costs) will be applicable to paid by the indemnities provided Shareholders to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice pro rata in proportion to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, their respective percentage equity interests in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementCompany.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the The Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints Equityholders hereby appoint the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful the representative, attorney-in-fact effective upon and agent of the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes Equityholders in connection with this Agreement the sale of the Company Shares and any agreements ancillary hereto including to (A) act according to the terms of other transactions contemplated by this Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement and/or the absolute discretion of Escrow Agreement. In connection therewith, the RepresentativeRepresentative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate, and, except as otherwise expressly provided in this Agreement, shall have the power and authority to:
(Bi) represent such act for the Company Securityholder and such Company Securityholder’s successors Equityholders with respect regard to all matters arising under pertaining to this Agreement and the Escrow Agreement;
(ii) act for the Company Equityholders to transact matters of arbitration or litigation;
(iii) execute and deliver all amendments, (C) receive all notices and service of process; and (D) in general to do all things and to perform all actswaivers, including executing and delivering any ancillary agreements, certificates, receipts, instructions, notices certificates and documents that the Representative deems necessary or instruments contemplated by or deemed advisable appropriate in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf sale of the Company Securityholders, except as expressly provided herein, in Shares and the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations consummation of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or transactions contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality Agreement;
(iv) receive funds, make payments of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuinefunds, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.give receipts for funds;
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iiiv) do not prevent the Representative Group or refrain from seeking doing any remedies available to them at law further act or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds deed on behalf of the Company Securityholders or otherwise. Furthermore, Equityholders that the Representative shall not be deems necessary or appropriate in its discretion relating to the subject matter of this Agreement or the Escrow Agreement as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to take any action unless the Representative has been provided with funds, security be given or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group received by the Company Shareholders Equityholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.;
(evii) The Representative may resign at give any time by giving thirty written direction to the Escrow Agent;
(30viii) days’ notice agree to, negotiate, enter into settlements and compromises of and comply with arbitration awards and court orders with respect to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected claims for indemnification made by the Company Securityholders holding at least a majority Buyer under Article VII; and
(ix) receive service of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations process in connection with any claims under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(fb) Buyer will All decisions and actions by the Representative shall be binding upon all Company Equityholders, and no Company Equityholder shall have no liability the right to the Company Securityholders object, dissent, protest or otherwise arising out of contest the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreementsame.
(gc) After At the Closing, the Buyer shall afford pay the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice Expense Amount to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, which Representative Expense Amount shall be maintained by the Representative in each case, to a segregated account. The Representative shall be reimbursed by the extent reasonably related to such claims under Company Equityholders (and not by the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its SubsidiariesCompany) under this Agreement or any applicable Law, and (y) the for reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Representative Fund and, if such fund is insufficient to pay such expenses, from the first proceeds from the Escrow Fund or Net Milestone Payments otherwise available for distribution to the Company Equityholders. Upon the determination of the Representative that the Representative Fund is no longer necessary in connection therewith will with any claim for indemnification under Article VII or any dispute regarding Milestone Payments, the Representative shall distribute to the Company Equityholders (solely out of the Representative Fund) the Representative Account Payment. The Representative shall hold, invest, reinvest and disburse the Representative Fund in trust for all of the Company Equityholders, and the Representative Fund shall not be promptly reimbursed used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder.
(d) The Representative shall treat confidentially and not use other than in the performance of its duties as the Representative and not disclose any information disclosed to it pursuant to this Agreement to anyone except as required by Law, provided that (i) the Representative may disclose to legal counsel and other advisors under an obligation of confidentiality and non-use in such advisor’s capacity as such (for the purpose of advising the Representative and the Company Equityholders on any information disclosed to the Representative pursuant to this Agreement), (ii) the Representative (on behalf of or legal counsel or other advisor to whom information is disclosed pursuant to clause (i) above) may disclose in any Legal Proceeding relating to this Agreement or the Company Securityholders).
transactions contemplated hereby (hor, in either case, discussion in preparation therefor) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing any information disclosed to the Representative for any third party expenses incurred pursuant to this Agreement and (iii) the Related AgreementsRepresentative may disclose to its professional advisers and any member of its board (but not to any other Person, including any investor in any of the foregoing Persons) any information disclosed to the Representative, subject to the Persons to whom the disclosure is to be made agreeing with the Buyer in writing to restrictions on the disclosure and use of such information consistent with the restrictions to which the Representative is subject pursuant to this Section 1.7(d).
(e) The Company Equityholders may from time to time appoint another person to act as their representative, provided that such appointment shall not take effect until it has been notified to the Buyer in writing signed by or on behalf of holders of Company Securities who held, as of immediately prior to the Closing, a majority (by voting power) of the then outstanding Company Securities) (the “Required Sellers”), and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement. Upon any replacement of the Representative, the Representative being replaced shall transfer to the new Representative the balance of any unexpended Representative Expense Amount.
(f) Each Company Equityholder agrees that:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Representative as to the determination of the Final Closing Adjustment and the Adjusted Purchase Price, the settlement of any disputes or claims under this Agreement and the Escrow Agreement, or any other actions required or permitted to be taken by the Representative hereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or in remedies that any similar capacity Company Equityholder may have in connection with the Representative Expense Amountsale of the Company Shares and the other transactions contemplated by this Agreement;
(iii) remedies available at Law for any breach of the provisions of this Section 1.7 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.7; and
(iv) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and has no tax reporting or income distribution obligations. The any references in this Agreement to a Company Securityholders will not receive any interest or earnings on Equityholder shall mean and include the Representative Expense Fund and irrevocably transfer and assign successors to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss rights of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate fundseach applicable Company Equityholder hereunder, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available whether pursuant to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiestestamentary disposition, the Representative will deliver any remaining Laws of the Representative Expense Fund to the Paying Agent for further descent and distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingor otherwise.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Medicines Co /De)
Representative. (a) In order to efficiently administer Effective upon and by virtue of the obligations specified in Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes of this Agreement and efficiently represent any other agreements and documents executed or delivered in connection with this Agreement. The Representative shall take such actions to be taken by the interests Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to all matters any matter or Actions arising under out of or relating to this Agreement Agreement, or the Escrow Agreementtransactions contemplated hereby, by virtue of the approval of this Agreement (iv) taking all actions and the Acquisition (and no act making all filings on behalf of such Company Securityholder), and Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the Acquisition or participating in the Acquisition transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and receiving the benefits thereofcompromises of, including the right to receive the consideration payable complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the Acquisitionforegoing actions, each Company Securityholder appoints engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as its exclusive agent for such Company Securityholder and as such each Company Securityholder’s true and lawful attorney-in-fact effective upon revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the Closingsole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with full power and respect to actions of Representative pursuant to the authority in granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder’s name .
(b) A decision, act, consent or instruction of the Representative hereunder shall constitute a decision, act, consent or instruction of all Company Securityholders and shall be final, binding and conclusive upon each such Company Securityholder, and Parent and the Surviving Company may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each and every such Company Securityholder. Parent, the Surviving Company shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Representative.
(c) Certain Company Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement (such Company Securityholders, included their individual representatives, hereinafter referred to as the “Advisory Group”). Neither the Representative and its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall incur liability with respect to any action taken or suffered by any Company Securityholder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Representative to be genuine and to have been signed by such Company Securityholder (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the gross negligence, bad faith or willful misconduct of the Representative Group. In all questions arising under this Agreement, the Representative may rely on the advice of outside counsel, and the Representative shall not be liable to any Company Securityholder for anything done, omitted or suffered in good faith by Representative based on such advice. No provision of this Agreement shall require the Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Company Securityholders.
(d) Each Company Securityholder shall severally, but not jointly (based on such Company Securityholder’s behalf for all purposes Distribution Allocation), indemnify the Representative Group and hold the Representative Group harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Representative Group and arising out of or in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion acceptance or administration of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all actsduties hereunder, including executing the reasonable fees and delivering expenses of any agreements, certificates, receipts, instructions, notices legal counsel or instruments contemplated other advisors reasonably retained by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement AgreementRepresentative. Notwithstanding the foregoing, the Representative’s standard hourly rates and all out-of-pocket fees and expenses incurred by the Representative in performing its duties shall have no obligation be borne by the Company Securityholders paid in accordance with their respective Distribution Allocations of such fees and expenses out of any Earnout Payment otherwise distributable to act on behalf of the Company Securityholders, except as expressly provided hereinand, thereafter, directly from the Company Securityholders, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedaccordance with their respective Distribution Allocations.
(be) At any time Stockholders representing at least a majority of the equity securities of the Company outstanding immediately prior to the Effective Time may, by written consent, appoint another Person as Representative. Notice together with a copy of the written consent appointing such Person and bearing the signatures of such Stockholders must be delivered to Parent not less than ten (10) days prior to such appointment. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent.
(f) In the event that the Representative becomes unable or unwilling to continue in his or its capacity as the Representative, or if the Representative resigns as a Representative, Stockholders representing at least a majority of the equity securities of the Company outstanding immediately prior to the Effective Time may, by written consent, appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of such Stockholders must be delivered to Parent. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent.
(g) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery resignation or removal of an assignment by Representative or any Company Securityholder member of the whole or Advisory Group and the Closing and/or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval termination of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment SpreadsheetDistribution Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
. The grant of authority provided for herein (dA) Certain Company Securityholders have entered into is coupled with an engagement agreement with interest and shall be irrevocable and survive the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholdersdeath, including their individual representativesincompetency, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action bankruptcy or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act liquidation of any Company Securityholder, each (B) shall survive the delivery of an assignment by any Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against whole or any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses fraction of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under interest in any post-Closing consideration and (C) shall survive the consummation of the Mergers. The provisions of this Section 8.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Securityholder, and any references in this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent to any Company Securityholder or ceases to exist, then the Company Securityholders holding at least a majority of shall mean and include the successors to such Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrarySecurityholder’s rights hereunder, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed whether pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Persontestamentary disposition, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities laws of descent and rights to indemnification shall survive the resignation distribution or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementotherwise.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Aytu Bioscience, Inc)
Representative. (a) In order to efficiently administer For purposes of this Agreement, the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementEscrowed Holders, by virtue of the approval of the Mergers and this Agreement and without any further action on the Acquisition (and no act part of any such Company Securityholder)Escrowed Holder or the Company, and shall be deemed to have consented to the consummation appointment of the Acquisition or participating in Representative, as the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon under this Agreement, the ClosingPaying Agent Agreement, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in for and on behalf of each such Escrowed Holder and the absolute discretion taking by Representative of any and all actions and the Representativemaking of any decisions required or permitted to be taken by the Representative under and subject to the terms, (B) represent such Company Securityholder conditions and such Company Securityholder’s successors with respect to all matters arising under limitations, of this Agreement Agreement, the Paying Agent Agreement, and the Escrow Agreement, including the exercise of the power to (Ca) receive all notices prepare, execute and service deliver this Agreement and the Transaction Documents to which it is a party, any document, certificate or other instrument required to be delivered by or on behalf of process; the Escrowed Holders and any amendments hereto and thereto, (Db) authorize delivery to Parent and the Surviving Company of the Escrow Fund or any 99 portion thereof, in general satisfaction of Indemnification Claims, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to do all things such Indemnification Claims and to perform all acts, including executing pursue remedies and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable Legal Proceedings in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Net Aggregate Consideration and any portion thereof, including, the Escrow Fund and the Representative Expense Amount, (f) to give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of Representative for the accomplishment of the foregoing (including engaging counsel, accountants or other advisors in connection with the foregoing matters) and all of the other terms, conditions and limitations of this Agreement, the Paying Agent Agreement, and the Escrow Agreement or that are specifically mandated by the Representative Engagement terms of this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company SecurityholdersEscrowed Holders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Paying Agent Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Representative agrees to act as Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the representativedeath, agent incompetence, bankruptcy or liquidation of any Escrowed Holder and attorney-in-fact shall be binding on any successor thereto, and (ii) shall survive the delivery of each Company Securityholder. Each Company Securityholders agrees, an assignment by virtue any Escrowed Holder of the approval whole or any fraction of this Agreement his, her or its interest in the Escrow Fund. The Escrowed Holders and the Acquisition (and no act of such Company Securityholder), that their successors will be bound by all actions taken by the Representative under in connection with this Agreement, the Escrow Agreement, or and the Representative Engagement Paying Agent Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderthe Escrowed Holders, and all defenses which may be available to any Company Securityholder Escrowed Holder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Paying Agent Agreement (including entering into any amendment of same) for are waived, and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer Parent and the Surviving Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) to rely upon the Payment Spreadsheet, (ii) rely upon on any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf action or decision of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Representative.. Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall ), will incur any liability to the Company Securityholders of any kind with respect to any action taken or omission suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the Representative proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from acceptance or administration of the Representative’s responsibilities hereunder, under the Escrow Agreement or the Paying Agent Agreement, except its own willful misconduct misconduct, bad faith or gross negligence. By virtue In all questions arising under this Agreement, the Escrow Agreement or the Paying Agent Agreement, Representative may: (i) rely on the advice of counsel, and Representative will not be liable to the approval of this Agreement and the Acquisition and no other act of any Company SecurityholderEscrowed Holders for anything done, each Company Securityholder (omitted or suffered in good faith by Representative based on such Company Securityholder’s Pro Rata Share)advice, (ii) rely upon the Allocation Schedule, (iii) rely upon any signature believed by it to be genuine, and (iv) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Escrowed Holder or other party. The Escrowed Holders shall, severally and not jointly, by each Company Securityholder will based on their Indemnity Pro Rata Share, indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) and its successors and assigns from and against any and all suits, actions, causes of action, losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs costs, judgments, amounts paid in settlement and expenses (including the reasonable attorneys’ fees and court costs and fees and expenses of counsel and experts and their staffs in connection with seeking recovery from insurers, and all expense expenses of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.,
Appears in 2 contracts
Sources: Merger Agreement (Oddity Tech LTD), Merger Agreement (Oddity Tech LTD)
Representative. (a) In order As of the date hereof until such time as the Post-Closing Adjustment is finally determined pursuant to efficiently administer Section 2.8 (such period, the obligations specified “Adjustment Period”), all references to the “Representative” herein shall be deemed to refer to Atlas Merchant Capital LLC in its capacity as representative of the Sellers (and, following execution of the Distribution Agreements and (as applicable) Limited Joinders, the Specified Holders, Other Holders and Cashed Out Holders, as applicable) and, from and after the end of the Adjustment Period, all references to the “Representative” herein shall be deemed (immediately and automatically without any action by any Person) to refer to Holdco II Seller in its capacity as representative of the Sellers (and, following execution of the Distribution Agreements, the Specified Holders, Other Holders and Cashed Out Holders, as applicable), in each case, for all purposes under this Agreement, the other Transaction Documents and the other agreements, instruments, and documents contemplated thereby as further described in this Agreement Section 11.18; provided, however, and efficiently represent not withstanding anything herein to the interests of contrary, during the Company Securityholders Adjustment Period, Atlas Merchant Capital LLC agrees to reasonably cooperate with respect to Holdco II Seller and its accountants and other representatives in connection with any and all matters arising under this Agreement out of or related to the Escrow Agreement, by virtue of the approval of this Earnout Agreement and the Acquisition Earnout Amount.
(b) The Sellers (and, following execution of the Distribution Agreements and no act of such Company Securityholder)(as applicable) Limited Joinders, the Specified Holders, Other Holders and Cashed Out Holders, as applicable, collectively, the “Other Specified Sellers”) hereby agree that the Representative is hereby irrevocably appointed as the representative, agent, proxy, and the consummation attorney in fact (coupled with an interest) for all of the Acquisition or participating in Sellers and the Acquisition Other Specified Sellers for all purposes under this Agreement, the other Transaction Documents and receiving the benefits thereofother agreements, instruments, and documents contemplated thereby, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company SecurityholderSeller’s or such Other Specified Seller’s behalf for all purposes (without the prior approval of any Seller): (i) to consummate the Transactions and the other agreements, instruments, and documents contemplated hereby or executed in connection with herewith; (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and any agreements ancillary hereto including to (A) act according to Agreement, the terms of this Agreement other Transaction Documents and the Escrow Agreement other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the Post-Closing Adjustment contemplated by Section 2.8 and the Post-Closing Amounts); (iii) to satisfy any and all obligations or liabilities of any Seller, any Other Specified Sellers or the Representative in the absolute discretion performance of any of their commitments hereunder (including, for the Representativeavoidance of doubt, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement the Post-Closing Adjustment contemplated by Section 2.8 and the Escrow Post-Closing Amounts); (iv) to execute and deliver any amendment or waiver to this Agreement, (C) receive all notices the other Transaction Documents and service of processthe other agreements, instruments, and documents contemplated hereby or executed in connection herewith; and (Dv) in general to do take all things and other actions to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated be taken by or deemed advisable on behalf of any Seller or any Other Specified Sellers in connection with this Agreement, the Escrow Agreement other Transaction Documents and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative, and shall survive the death, incapacity, bankruptcy, dissolution, or liquidation of each Seller and each Other Specified Seller. All decisions, actions, exercises of rights, power, authority, or determination by the Representative Engagement Agreementshall be binding upon each Seller and each Other Specified Seller, as if such Person had taken such decision, action, exercise of rights, power, authority, or determination in its individual capacity, and the Escrow Agent and the Purchaser Parties may rely upon such decision, action, exercise of right, power, authority, or such determination of the Representative as the decision, action, exercise, right, power, authority, or determination of such Person, and none of the Sellers nor any Other Specified Person shall have the right to object, dissent, protest, or otherwise contest the same. Notwithstanding the foregoing, the The Representative shall have no obligation to act on behalf of the Company Securityholdersduties or obligations hereunder, including any fiduciary duties, except as expressly provided those set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement. The Representative is serving in the Escrow Agreement and in the Representative Engagement Agreement, and that capacity solely for purposes of clarityadministrative convenience, there are no and is not individually liable in such capacity for any of the obligations of the Representative in any ancillary agreement, schedule, exhibit other Sellers or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group Other Specified Sellers hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns shall not be liable to the Sellers or otherwise is unable the Other Specified Sellers for actions taken pursuant to perform its obligations as suchthis Agreement, the other Transaction Documents (including the Escrow Agreement or the Earnout Agreement) or the other Transaction Documents and the other agreements, instruments, and documents contemplated thereby, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted fraud or bad faith (ii) no successor Representative is appointed it being understood that any act done or omitted pursuant to the foregoing within twenty (20) daysadvice of counsel, thenaccountants, and other professionals and experts retained by the Representative shall be conclusive evidence of good faith). Effective as of the date hereof, and without any further action act of or consent by any Personof the Sellers, the Advisory GroupOther Specified Sellers, the Representative and its Non-Recourse Parties shall be indemnified, held harmless, and reimbursed by each Seller and each Other Specified Seller severally, and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines, and amounts paid or incurred by the Representative and its Non-Recourse Parties arising out of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement (including, for the avoidance of doubt, the Post-Closing Adjustment contemplated by Section 2.8 or the Post-Closing Amounts) (the “Representative Losses”). Any and all purposes hereunder until replaced in accordance with the foregoing amounts paid or incurred by the Company Securityholders. The immunities Representative and rights its Non-Recourse Parties in connection with any claim, action, suit, or proceeding to indemnification which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement are on behalf of the Sellers and the Other Specified Sellers (and, not for the avoidance of doubt, on behalf of the Representative in any other capacity, as a Seller or otherwise) and shall survive be Representative Losses.
(d) Neither the resignation Representative nor any of its Non-Recourse Parties shall incur any liability to any Seller or removal any the Other Specified Sellers by virtue of the failure or refusal of the Representative or any member of its Non-Recourse Parties for any reason to consummate the Transactions or relating to the performance of their duties hereunder. The Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim, or proceeding brought against any such Person by any Seller or any Other Specified Sellers, regardless of the Advisory Group legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
(e) If the Representative pays or causes to be paid any amounts in connection with any obligation or liability of a Seller or any Other Specified Seller in connection with the Transactions (including, for the avoidance of doubt, the Post-Closing Adjustment contemplated by Section 2.8 or the Post-Closing Amounts), any such payments and the Closing and/or any termination reasonable expenses of this Agreement the Representative incurred in administering or defending the underlying dispute or claim shall be first deducted from the Representative Holdback Account and the Escrow Agreementthereafter be reimbursed by and be obligations of each Seller and each Other Specified Sellers severally, and not jointly, for such amount(s).
(f) Buyer will have no liability All references to the Company Securityholders or otherwise arising out “Representative” herein mean such Person in its capacity as representative of the acts or omissions Sellers (and, following execution of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, the Distribution Agreements and notices to and from(as applicable) Limited Joinders, the Representative to satisfy any obligations it might have under this Agreement or Specified Holders, Other Holders and Cashed Out Holders, as applicable) and not, for the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records avoidance of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representativedoubt, in each caseany other capacity, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent Seller or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingotherwise.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Lincoln International, Inc.), Equity Purchase Agreement (Lincoln International, Inc.)
Representative. By executing this Joinder, Permitted Transferee shall be deemed to have irrevocably appointed Representative as its agent and attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such Permitted Transferee which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including: (a) In order execution of the documents and certificates required pursuant to efficiently administer this Agreement; (b) except to the obligations specified extent provided in this Agreement Agreement, receipt and efficiently represent the interests forwarding of notices and communications pursuant to this Agreement; (c) administration of the Company Securityholders with respect provisions of this Agreement; (d) any and all consents, waivers, amendments or modifications deemed by Representative to all matters arising be necessary or appropriate under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition execution or delivery of any documents that may be necessary or appropriate in connection therewith; (e) taking actions Representative is authorized to take pursuant to the other provisions of this Agreement; (f) negotiating and no act compromising, on behalf of such Company Securityholder)Permitted Transferee, any dispute that may arise under, and the consummation exercising or refraining from exercising any remedies available under, this Agreement and executing, on behalf of the Acquisition Permitted Transferee, any settlement agreement, release or participating in the Acquisition other document with respect to such dispute or remedy; and receiving the benefits thereof(g) engaging attorneys, including the right to receive the consideration payable in connection with the Acquisitionaccountants, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and agents or consultants on such Company Securityholder’s behalf for all purposes of Permitted Transferee in connection with this Agreement and paying any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act fees related thereto on behalf of the Company SecurityholdersPermitted Transferee, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedulesubject to reimbursement by Permitted Transferee. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving upon thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior written notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)Corporate Taxpayer.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Tax Receivable Agreement (Andersen Group Inc.), Tax Receivable Agreement (Andersen Group Inc.)
Representative. (a) In order to efficiently administer GS Capital Partners VI Fund, L.P. shall be the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of for each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of Stockholders and the Optionholders to act as Representative under this Agreement and the Acquisition (and no act other agreements contemplated hereby in accordance with the terms of such Company Securityholder)this Section 11.12. In the event of the resignation, that all actions taken death or incapacity of the Representative, a successor Representative reasonably satisfactory to Parent shall thereafter be appointed by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder an instrument in writing signed by Parent and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedsuccessor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders and the Optionholders (with full power of attorney and all authority conferred under this Section 2.5 and substitution in the powers, immunities and rights to indemnification granted to premises) in connection with such matters as are reasonably necessary for the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder consummation of the whole or any fraction of his, her or its interest transactions contemplated in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition other agreements contemplated hereby including, without limitation, (i) to receive all payments owing to the Stockholders or the Optionholders under this Agreement, (ii) to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Stockholders to review and no act of authorize all claims and disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Parent any claims asserted thereunder and to authorize payments to be made with respect thereto, (v) to take such Company Securityholderfurther actions as are authorized in this Agreement or the other agreements contemplated hereby, and (vi) in general, do all things and perform all acts, including, without limitation, executing and delivering all agreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), renounces certificates, receipts, consents, elections, instructions and other documents contemplated by, or deemed by the Representative to be necessary or desirable in connection with, this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be entitled to rely on such Company Securityholder’s right appointment and to renounce treat the Representative as the duly appointed attorney-in-fact of each Stockholder and Optionholder. Notices given to the Representative in accordance with the provisions of this power of attorney unilaterally any time before Agreement shall constitute notice to the termination of Stockholders and Optionholders for all payment obligations purposes under this Agreement.
(c) The Representative agrees to be bound by all obligations appointment of the Representative under this Agreement or the Escrow Agreement to which it is a party an agency coupled with an interest and shall take is irrevocable and any and all actions which action taken by the Representative believes are necessary pursuant to the authority granted in this Section 11.12 shall be effective and absolutely binding on each Stockholder and Optionholder notwithstanding any contrary action of or appropriate under this Agreement, the Escrow Agreementdirection from such Stockholder or Optionholder. The death or incapacity, or dissolution or other termination of existence, of any Stockholder or Optionholder shall not terminate the Representative Engagement Agreement (including entering into any amendment of same) for authority and on behalf agency of the Company SecurityholdersRepresentative. Parent, including defending all indemnity claims pursuant Merger Sub and any other party to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or document contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection dealing with the foregoing matters. Without limiting the generality Representative may conclusively and absolutely rely, without inquiry, upon any act of the foregoing, by virtue Representative as the act of the approval of this Agreement Stockholder or Optionholder and the Acquisition (and no shall be relieved from any liability to any Person for any acts done by them in accordance with such act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyRepresentative.
(d) Certain Company Securityholders have entered into an engagement agreement with the The Representative shall not be liable to provide direction any Stockholder, Optionholder or to the Representative in connection with its services under this Agreement and the Escrow Agreement any other Person (such Company Securityholdersother than Parent or Merger Sub), including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action taken or omission omitted to be taken by the Representative in its role as Representative under or in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting unless such action or omission results from the Representative’s or arises out of willful misconduct or gross negligence. By virtue of negligence on the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct part of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required liable to take any action unless Stockholder or Optionholder in the event that, in the exercise of its reasonable judgment, the Representative has been provided with funds, security believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by Parent or indemnities which, in its determination, are sufficient to protect the Representative Merger Sub against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions Stockholders or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this AgreementOptionholders.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected entitled to use the funds constituting the Representative Expense Amount, for any and all expenses, charges and liabilities, including, but not limited to, reasonable attorneys’ fees, incurred by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case performance or discharge of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed duties pursuant to this Section 11.12 (the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the “Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementExpenses”).
(f) Buyer will have no liability to Each Letter of Transmittal shall provide that the Company Securityholders or otherwise arising out Representative shall be the agent and attorney-in-fact for each of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement Stockholders and the Related Agreements, or (ii) Optionholders with full power and authority to act as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, under and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time terms of Closingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Michael Foods Group, Inc.), Merger Agreement (Post Holdings, Inc.)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Each Stockholder hereby designates and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition appoints (and no act each permitted Transferee of each such Company SecurityholderStockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in of substitution, to serve as the representative of such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and Stockholder to perform all actssuch acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including executing the voting of the Subject Shares in accordance with Sections 4(a) and delivering 4(b)), and hereby acknowledges that the Representative shall be authorized to take any agreementsaction so required, certificates, receipts, instructions, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or instruments contemplated other action taken by or deemed advisable in connection with such Stockholder pursuant to this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement for notices and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, Representative. Oracle is and will be entitled to rely on any action so taken or any notice given by the Representative Engagement and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement shall to be binding upon given to any such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which Stockholder. A successor to the Representative may be available to any Company Securityholder to contest, negate or disaffirm the action chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedto Oracle.
(b) The Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of attorney and all authority conferred under this Section 2.5 and substitution, as the powers, immunities and rights to indemnification granted proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative Group hereunder: to represent, vote and otherwise act (i) shall be irrevocable and shall not be terminated by voting at any act meeting of any Company Securityholderthe Stockholders of the Company, by operation of law, by such Company Securityholder’s death written consent in lieu thereof or disability or any other event and (iiotherwise) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all the Subject Shares owned or held by such Stockholder regarding the matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (iiSections 4(a) and (iii4(b) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or until the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closingsame extent and with the same effect as such Stockholder might or could do under applicable law, rules and regulations. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed The proxy granted pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, immediately preceding sentence is coupled with an interest and shall be the Representative for irrevocable. Each Stockholder hereby revokes any and all purposes hereunder until replaced in accordance previous proxies or powers of attorney granted with the foregoing by the Company Securityholders. The immunities and rights respect to indemnification shall survive the resignation or removal any of the Representative Subject Shares owned or any member of held by such Stockholder regarding the Advisory Group matters referred to in Sections 4(a) and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders4(b).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Shareholder Agreement (Ozark Holding Inc.), Shareholder Agreement (Oracle Corp /De/)
Representative. (a) In order to efficiently administer Effective upon the obligations specified in this Agreement and efficiently represent receipt by the interests Company of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementRequisite Stockholder Approval, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the AcquisitionAgreement, each Company Securityholder Stockholder hereby irrevocably constitutes and appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s the true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholderthe Stockholders, for and on behalf of the Stockholders, with full power of substitution and authority to act in the name, place and stead of the Stockholders with respect to the Merger and the transactions contemplated by this Agreement, to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, to give and receive notices and communications on behalf of the Stockholders, and to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power to (i) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims for indemnification, to authorize deliver to Buyer or any Indemnified Party of any payment hereunder, and to otherwise act for the Stockholders with regard to all matters pertaining to indemnification referred to in this Agreement, (ii) execute and deliver all amendments, waivers, Ancillary Agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive funds and make payments of funds to pay any amounts that the Representative has incurred or reasonably expects to incur in connection with the Stockholders’ obligations under this Agreement, including amounts required to pay the fees and expenses of professionals incurred in connection with the transactions contemplated by this Agreement, (iv) do or refrain from doing any further act or deed on behalf of the Stockholders that the Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as the Stockholders could do if personally present, and (v) receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Representative shall be deemed coupled with an interest and shall be irrevocable, and the Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Representative in all matters referred to herein. Each Company Securityholders agrees, The Stockholders hereby confirm all that the Representative shall do or cause to be done by virtue of his appointment as the approval Representative. The Representative shall act for all Stockholders on all of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Representative shall not be responsible to the Stockholders for any losses or damages the Stockholders may suffer by the performance of his duties under this Agreement (or any failure to perform such duties) and the Acquisition (Stockholders shall fully indemnify, on a joint and no act several basis, the Representative from and against any such losses or damages, other than any such losses or damages arising from his willful violation of such Company Securityholder), that all actions taken by any applicable Law or gross negligence in the performance of his duties as the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon including reasonable legal fees and other costs and expenses of defending against any claim arising out of such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which duties. Such indemnification obligation may be available satisfied by the Stockholders from any amount to any Company Securityholder be actually distributed to contest, negate or disaffirm the action of the Representative taken Stockholders in good faith under this Agreement, accordance with the Escrow Agreement or and the Exchange Agent Agreement (it being understood that the Representative Engagement Agreement are waived.
(b) The power shall be only entitled to a portion of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights any such amount to indemnification granted be distributed to the Representative Group hereunder: (i) shall be irrevocable Stockholders and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive that the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company SecurityholderRepresentative’s right to renounce any portion of such amount pursuant to this power clause shall be subject to the prior right of attorney unilaterally any time before the termination of all payment obligations under this AgreementIndemnified Parties to make claims for Damages).
(c) The Representative agrees is not entitled to be bound by all obligations of the Representative under amend this Agreement or the Escrow Agreement to which it is a party and shall take any actions on behalf of the Stockholders prior to the receipt by the Company of the Requisite Stockholder Approval. The Representative may, in all questions arising hereunder, rely on the advice of counsel and all actions which other professionals, and for anything done, omitted or suffered in good faith by the Representative believes are necessary or appropriate under based on such advice, the Representative shall not be liable to anyone. Notwithstanding anything to the contrary contained in this Agreement, the Escrow AgreementRepresentative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or the Representative Engagement Agreement (including entering into any amendment of same) for and liabilities on behalf of any Stockholder shall otherwise exist against the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyRepresentative.
(d) Certain Company Securityholders have entered into an engagement agreement with If the Representative shall die, become disabled or otherwise be unable or unwilling to provide direction fulfill his responsibilities as agent of the Stockholders, then a majority in interest of the Stockholders (based on the percentage of the Escrow Deposit to which they are entitled) shall appoint a successor agent for the Stockholders. The Person serving as the Representative may be replaced from time to time by the holders of a majority in connection with its services under this Agreement and interest of the Stockholders (based on the percentage of the Escrow Agreement (Deposit to which they are entitled). In either case, the successor Representative shall promptly notify the Buyer of the identity of such Company Securityholders, including their individual representatives, collectively hereinafter referred to as successor Representative. Any such successor shall become the “Advisory Group”)Representative” for purposes of this Agreement. Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission All expenses incurred by the Representative in connection with the Representative’s services pursuant to this Agreement, performance of his duties as Representative shall be borne and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from paid exclusively by the Representative’s willful misconduct or gross negligenceStockholders. By virtue All of the approval of this Agreement indemnities, immunities and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided powers granted to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will Agreement shall survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) . The Representative may resign at any time parties have caused this Agreement to be duly executed by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) their respective authorized officers as of immediately prior to the Closingday and year first above written. If the Representative is unable to perform his, her or its obligations under By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Chief Executive Officer By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Chief Executive Officer COMPANY: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Chief Executive Officer /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ The parties have caused this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority be duly executed by their respective authorized officers as of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, day and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementyear first above written.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement (Connecture Inc), Merger Agreement (Connecture Inc)
Representative. (a) In order The parties have agreed that it is desirable to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation designate a representative to act on behalf of the Company SecurityholdersFully-Diluted Stockholders for certain limited purposes, except as expressly provided specified herein. The parties have designated ▇▇▇▇▇▇▇, in Dubilier & Rice, LLC as the Escrow Agreement and in the Representative Engagement Agreementinitial Representative, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement Stockholder Consent and the Acquisition (executed Letters of Transmittal will expressly ratify and no act of approve such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waiveddesignation.
(b) The power of attorney and all authority conferred under this Section 2.5 Company hereby agrees that Parent and the powers, immunities Escrow Agent shall be able to rely conclusively on the instructions and rights to indemnification granted decisions of the Representative as to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act settlement of any Company Securityholderclaims against the Purchase Price Adjustment Escrow Amount pursuant to the Purchase Price Adjustment Escrow Agreement, to the settlement of any claims against the Indemnification Escrow Amount pursuant to the Indemnification Escrow Agreement or as to any actions required or permitted to be taken by operation of lawthe Representative hereunder, by such Company Securityholder’s death under the Purchase Price Adjustment Escrow Agreement or disability or any other event and (ii) shall survive under the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Indemnification Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) Upon written instruction to the Escrow Agent, all out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement (including in connection with the determination of the Conclusive Merger Consideration pursuant to Section 2.11, the Purchase Price Adjustment Escrow Agreement, the Indemnification Escrow Agreement and any Transfer Taxes paid by the Representative pursuant to Section 5.11(b)), will be paid out of the Representative ▇▇▇▇▇▇ Account from time to time, as and when such fees and expenses are incurred and at the Representative’s sole discretion. In addition, the Representative shall have the right to recover any of such fees and expenses from the Indemnification Escrow Account from any amount that would otherwise be distributed to the Fully-Diluted Stockholders and, prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth such fees and expenses actually incurred. The Representative agrees shall establish with the Escrow Agent such terms and procedures for administering, investing and disbursing any amounts from the Representative Escrow Amount as it may determine in its reasonable judgment to be bound necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Representative Escrow Amount remains undisbursed at such time as all disputes, claims and other matters relating to the transactions contemplated by this Agreement, the Purchase Price Adjustment Escrow Agreement, the Representative Escrow Agreement and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then (i) the Representative shall provide a written instruction to the Escrow Agent to deliver promptly from the Representative Escrow Account by wire transfer of immediately available funds to the Representative an amount in cash equal to the Common Stockholders’ aggregate Ownership Percentage (in respect of such Common Stockholders’ Common Stock) of the balance of the Representative Escrow Account and to the Surviving Corporation, an amount in cash equal to the remainder balance of the Representative Escrow Account, and (ii) upon receipt of any such amounts from the Escrow Agent, (A) the Representative shall promptly pay or cause to be paid to each Common Stockholder its applicable Ownership Percentage (in respect of such Common Stockholder’s Common Stock) of the balance of the Representative Escrow Account, and the Surviving Corporation shall promptly pay to each Optionholder its applicable Ownership Percentage (in respect of such Optionholder’s Options) of the balance of the Representative Escrow Account and to each RSU Holder its applicable Ownership Percentage (in respect of such RSU Holder’s RSUs) of the balance of the Representative ▇▇▇▇▇▇ Amount.
(d) Each of the Company, ▇▇▇▇▇▇ Sub and Parent acknowledges and agrees that the Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company, ▇▇▇▇▇▇ Sub and Parent acknowledges and agrees that the Representative shall have no liability to, and shall not be liable for any Losses of, any of the Company, Merger Sub, Parent or the Surviving Corporation in connection with any obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment otherwise in respect of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with transactions contemplated hereby, except to the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of extent such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative Losses shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it proven to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf the direct result of the applicable Company Securityholder fraud or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission willful misconduct by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementhereunder.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer All of the indemnities, immunities and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior powers granted to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in shall survive the case of a Effective Time.
(f) The Representative that is not a natural Person, becomes bankrupt, insolvent or ceases hereby represents and warrants to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if Parent and Merger Sub that:
(i) The Representative has been duly formed and is validly existing as a limited liability company under the laws of the State of Delaware. The Representative resigns or otherwise is unable has all requisite power and authority to perform its obligations as such, execute and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Persondeliver this 95 Agreement, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Indemnification Escrow Agreement and the Purchase Price Adjustment Escrow Agreement.
(fii) Buyer The execution and delivery by the Representative of this Agreement, the Indemnification Escrow Agreement and the Purchase Price Adjustment Escrow Agreement and the performance by the Representative of its obligations hereunder and thereunder do not and will have no liability to not conflict with or violate any provision of any applicable law, rule or regulation of any Governmental Authority applicable to, or the Company Securityholders or otherwise arising out organizational documents of, the Representative.
(iii) Except (A) for filings under Section 2.3, (B) for filings under the HSR Act, and (C) as set forth in Section 3.3 of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings Seller Disclosure Letter, no notice to, filing with, and notices to and fromor authorization, registration, consent or approval of any Governmental Authority is necessary for the Representative to satisfy any obligations it might have under Representative’s execution of this Agreement or the Purchase Price Adjustment Escrow Agreement.
(g) After , the Closing, Buyer shall afford the Representative and Indemnification Escrow Agreement or its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records consummation of any of the Company (other than privileged documents), transactions contemplated hereby and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)thereby.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement
Representative. (a) In order to efficiently administer At the obligations specified in this Agreement Effective Time, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will be constituted and efficiently represent appointed as the interests of Representative, and the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementRepresentative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of the approval its adoption of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation approval of the Acquisition or participating in the Acquisition Merger, will be deemed to have appointed and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints constituted the Representative as its exclusive their agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon with the Closing, with full power powers and authority as set forth in this Agreement. All such Company Securityholder’s name actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on such Company Securityholder’s behalf for all purposes in connection with this Agreement of the Indemnifying Securityholders and any agreements ancillary hereto including Indemnifying Founders to (A1) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and enter into the Escrow Agreement, ; (C2) give and receive all notices and service communications to or from Parent (on behalf of process; and (Ditself or any other Indemnified Person) in general and/or the Escrow Agent relating to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative Engagement Agreement. Notwithstanding for the accomplishment of the foregoing, in each case without having to seek or obtain the Representative shall have no obligation consent of any Person under any circumstance; (7) subject to act Section 6.3, execute for and on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Indemnifying Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available Indemnifying Founder any amendment to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Engagement Agreement Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are waivedincurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.
(b) The power Person serving as the Representative may be replaced from time to time by the holders of attorney and all authority conferred under this Section 2.5 a majority in interest of the cash then on deposit in the General Escrow Fund upon not less than ten days’ prior written notice to Parent. The agency of the Representative may be changed only when the Person serving as the Representative is replaced pursuant to the preceding sentence. A vacancy in the position of Representative may be filled by the holders of a majority in interest of the cash then on deposit in the General Escrow Fund. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Securityholders will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the powersRepresentative will serve until such successor is duly appointed and qualified to act hereunder. If there is not a Representative at any time, immunities and rights any obligation to indemnification granted provide notice to the Representative Group hereunder: (i) shall will be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by deemed satisfied if such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder notice is delivered to each of the whole Indemnifying Securityholders or any fraction of hisIndemnifying Founders, her or its interest in the Escrow Amount. Without limiting the foregoingas applicable, the power of attorney shall be at their addresses last known to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementParent.
(c) The Representative agrees will not be liable to be bound by all obligations of any Indemnifying Securityholder or Indemnifying Founder for any act done or omitted in connection with the Representative Representative’s services under this Agreement or the Escrow Agreement to which it is a party while acting in good faith and shall take any and all actions which the Representative believes are necessary act done or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified omitted in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection accordance with the foregoing matters. Without limiting the generality advice of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act counsel or other expert will be conclusive evidence of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsgood faith. The Representative shall be entitled to: (i) rely upon the Payment SpreadsheetIndemnifying Securityholders and Indemnifying Founders, (ii) rely upon any signature believed by it to be genuineas applicable, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholderswill severally, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder but not jointly (based on such Company Securityholder’s Pro Rata Sharetheir respective Aggregate Escrow Funding Percentage or Unit Litigation Funding Percentage, as applicable, compared to the total Aggregate Escrow Funding Percentage or Unit Litigation Funding Percentage of all of the Indemnifying Securityholders or Indemnifying Founders, respectively), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless indemnify the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable fees and expenses of counsel and experts and their staffs and all reasonable expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary heretothe Escrow Agreement, in each case in such person’s capacity as the Representative only, and as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct any portion of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such a Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct bad faith of the Representative, the Representative will promptly reimburse the Company Indemnifying Securityholders or the Indemnifying Founders, as applicable, the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductbad faith. With respect to General Liability Claims, if not paid directly to the Representative by the Indemnifying Securityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Fund and (ii) the amounts in the General Escrow Fund at such time as remaining amounts in the General Escrow Fund would otherwise be distributable to the Indemnifying Securityholders. With respect to Litigation Liability Claims, if not paid directly to the Representative by the Indemnifying Founders, any such Representative Losses may be recovered by the Representative from the amounts in the Litigation Escrow Fund at such time as remaining amounts in the Litigation Escrow Fund would otherwise be distributable to the Indemnifying Founders. Notwithstanding the foregoing, while this section allows the Representative to be paid from the Representative Fund and the Escrow Funds, this does not relieve the Indemnifying Securityholders or Indemnifying Founders, as applicable, from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders Indemnifying Securityholders, Indemnifying Founders or otherwise. Furthermore, The Indemnifying Securityholders and Indemnifying Founders acknowledge and agree that the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(ed) The Representative may resign at will have reasonable access to information about the Surviving Entity and its then current officers and employees, as well as the reasonable assistance of the Company’s former officers and employees for purposes of performing its duties and exercising its rights hereunder; provided that the Representative will treat confidentially and not use or disclose the terms of this Agreement or any time by giving thirty nonpublic information from or about Parent, Surviving Entity, or any Indemnified Person to anyone (30) days’ notice except to Buyer and the Company Indemnifying Securityholders; In , Indemnifying Founders or the Representative’s employees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, in each case who agree to treat such eventinformation confidentially), provided, however, that neither Parent nor the Surviving Entity will be obligated to provide such access or information if it determines, in its reasonable judgment, that doing so would violate applicable Law or any Contract to which Parent, the successor Surviving Entity or any of their Affiliates is a party or obligation of confidentiality owed by Parent, the Surviving Entity or any of their Affiliates to a third party, jeopardize the protection of attorney-client privilege or any rights of Parent or any Indemnified Person under the work-product doctrine or expose Parent or the Surviving Entity to risk of liability for disclosure of sensitive or personally identifiable information. The Representative shall be selected by the Company Securityholders holding at least will enter into a majority of Company Ordinary Shares (on an as converted basis) as of immediately separate confidentiality agreement prior to the Closing. If the Representative is unable being provided access to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representativesuch information if requested by Parent. Notwithstanding anything herein in this Agreement to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the pre-Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records attorney-client privileged communications of the Company and its Subsidiaries that summarize, describe or refer to the Transactions or to negotiations relating to the Transactions (including all emails, correspondence, invoices, recordings and other than privileged documents)documents or files, evidencing or reflecting communications between the Company, its Subsidiaries and their respective counsel, and (ii) all Company personnel as reasonably identified files maintained by the Company’s or any of its Subsidiaries’ law firm or legal counsel ) (the “Communications”) will not become attorney-client privileged communications of the Surviving Entity, but will instead become attorney-client privileged Communications of the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with in the normal operations case of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice any good faith allegation of fraud perpetrated by the rights or privileges (including attorney-client privileges) of Buyer Company or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity representatives in connection with the Representative Expense AmountTransactions or negotiations relating to the Transactions, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign hereby agrees to waive the attorney client privilege with respect to any attorney client communications received or sent by any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ that would reflect Knowledge of the Company or information Known to the Representative any ownership right that they may otherwise have had in any Company relating to such interest or earningsallegation. The Representative will cause all Communications stored on the Company’s servers prior to the Closing to be preserved.
(e) The Representative shall (i) reasonably inform each Indemnifying Securityholder of all material actions taken in its capacity as the Representative with respect to all material matters arising under or with respect to this Agreement, (ii) not be liable for take any loss action in its capacity as the Representative that materially adversely affects the rights or obligations of principal any Indemnifying Securityholder in any manner materially different from the other Indemnifying Securityholders without the prior written consent of such Indemnifying Securityholder, and (iii) shall not take any action in its capacity as the Representative (to the extent the Representative has any authority to do so) to amend, waive or otherwise modify any provision of the Joinder Agreement with the Insight Unitholders and Accel Unitholders, the last sentence of Section 1.5(a) or Section 1.4(h) without the prior written consent of the Indemnifying Securityholder(s) party thereto or effected thereby, as the case may be.
(f) By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund pursuant to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time terms of Closingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Vmware, Inc.)
Representative. (a) In order The Person designated by the Stockholders to efficiently administer act as Representative shall be the obligations specified in this Agreement agent and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion each of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect Stockholders to all matters arising act as the Representative under this Agreement and the Escrow other agreements contemplated hereby in accordance with the terms of this Section 11.13. In the event of the resignation, death or incapacity of the Representative, a successor Representative reasonably satisfactory to Parent shall thereafter be appointed by an instrument in writing signed by Parent and such successor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders (with full power of substitution in the premises) in connection with such matters as are reasonably necessary for the consummation of the transactions contemplated by this Agreement and the other agreements contemplated hereby including: (i) to receive all payments owing to the Stockholders under this Agreement, (Cii) receive to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Stockholders to review and authorize all notices claims and service of process; disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Parent any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement and the other agreements contemplated hereby, and (Dvi) in general to general, do all things and to perform all acts, including executing and delivering any agreementsall agreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, instructionsconsents, notices or instruments elections, instructions and other documents contemplated by by, or deemed advisable by the Representative to be necessary or desirable in connection with with, this Agreement, the Escrow Agreement other agreements contemplated hereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be entitled to (x) rely on such appointment and to treat the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and duly appointed attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesStockholder and (y) assume that all actions, by virtue decisions and determinations of the approval Representative are fully authorized. Notices given to the Representative in accordance with the provisions of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted constitute notice to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of Stockholders for all payment obligations purposes under this Agreement.
(c) The Representative agrees to be bound by all obligations appointment of the Representative under this Agreement or the Escrow Agreement to which it is a party an agency coupled with an interest and shall take is irrevocable and any and all actions which action taken by the Representative believes are necessary pursuant to the authority granted in this Section 11.13 shall be effective and absolutely binding on each Stockholder notwithstanding any contrary action of or appropriate under this Agreement, the Escrow Agreementdirection from such Stockholder. The death or incapacity, or dissolution or other termination of existence, of any Stockholder shall not terminate the Representative Engagement Agreement (including entering into any amendment of same) for authority and on behalf agency of the Company SecurityholdersRepresentative. Parent, including defending all indemnity claims pursuant Merger Sub and any other party to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or document contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection dealing with the foregoing matters. Without limiting the generality Representative may conclusively and absolutely rely, without inquiry, upon any act of the foregoing, by virtue Representative as the act of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyStockholder.
(d) Certain Company Securityholders have entered into an engagement agreement with the The Representative shall not be liable to provide direction any Stockholder or to the Representative in connection with its services under this Agreement and the Escrow Agreement any other Person (such Company Securityholdersother than Parent or Merger Sub), including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action taken or omission omitted to be taken by the Representative in its role as Representative under or in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting unless such action or omission results from the Representative’s or arises out of willful misconduct or gross negligence. By virtue of negligence on the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct part of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required liable to take any action unless Stockholder in the event that, in the exercise of his, her or its reasonable judgment, the Representative has been provided with funds, security believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by Parent or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this AgreementMerger Sub.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as suchreceive reimbursement from, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and indemnified from, the Representative to satisfy any obligations it might have under this Agreement or Escrow Account and the Indemnity Escrow Agreement.
Account (g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related any funds are released therefrom pursuant to such claims under Section 3.4(b) for payment of the Claim Notice; providedPer Share Indemnity Escrow Release Amount to the Stockholders), however, that (x) access to such books, records, documents for any and personnel will not unreasonably interfere with the normal operations of Buyer all reasonable and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable documented out-of-pocket expenses of Buyer expenses, charges and its Subsidiaries liabilities, including attorneys’ fees, incurred in connection therewith will be promptly reimbursed by the Representative (on behalf in the performance or discharge of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred its duties pursuant to this Agreement and the Related AgreementsSection 11.13, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable except for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its liability imposed by Law for gross negligence or willful misconduct. The misconduct (the “Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingExpenses”).
Appears in 2 contracts
Sources: Merger Agreement (BakerCorp International, Inc.), Merger Agreement (United Rentals North America Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests By their execution of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Letter of Transmittal and/or Option Surrender Agreement, by virtue approval of the approval Merger and adoption of this Agreement and and/or their acceptance of any consideration pursuant to this Agreement, the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints Equityholders hereby appoint the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful the representative, attorney-in-fact effective upon and agent of the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes Equityholders in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of transactions contemplated by this Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement and/or the absolute discretion of Escrow Agreement. In connection therewith, the RepresentativeRepresentative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate, and, except as otherwise expressly provided in this Agreement, shall have the power and authority to:
(Bi) represent such act for the Company Securityholder and such Company Securityholder’s successors Equityholders with respect regard to all matters arising under pertaining to this Agreement and the Escrow Agreement; including, employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Representative, in its sole discretion, deems necessary or advisable in the performance of the duties of the Representative;
(Cii) receive act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all notices and service of process; and (D) in general to do all things and to perform all actsamendments, including executing and delivering any waivers, ancillary agreements, certificates, receipts, instructions, notices certificates and documents that the Representative deems necessary or instruments contemplated by or deemed advisable appropriate in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf consummation of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or transactions contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality Agreement;
(iv) receive funds, make payments of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuinefunds, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.give receipts for funds;
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iiiv) do not prevent the Representative Group or refrain from seeking doing any remedies available to them at law further act or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds deed on behalf of the Company Securityholders or otherwise. Furthermore, Equityholders that the Representative shall not be deems necessary or appropriate in its discretion relating to the subject matter of this Agreement or the Escrow Agreement as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to take any action unless the Representative has been provided with funds, security be given or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group received by the Company Shareholders Equityholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.;
(evii) The Representative may resign at give any time by giving thirty written direction to the Escrow Agent;
(30viii) days’ notice agree to, negotiate, enter into settlements and compromises of and comply with arbitration awards and court orders with respect to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected claims for indemnification made by the Company Securityholders holding at least a majority Buyer under Article VII; and
(ix) receive service of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations process in connection with any claims under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(fb) Buyer will All decisions and actions by the Representative shall be binding upon all Company Equityholders, and no Company Equityholder shall have no liability the right to the Company Securityholders object, dissent, protest or otherwise arising out of contest the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreementsame.
(gc) After Subject to the terms and conditions of this Agreement, upon the Closing, the Buyer shall afford wire to the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice the Representative Expense Amount pursuant to wire instructions provided to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will which shall be promptly reimbursed held by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will as agent in a segregated client account and shall be used for the purposes of paying directly, or reimbursing the Representative for for, any third party expenses incurred pursuant to this Agreement, the Escrow Agreement or any Representative engagement agreement. The Representative will hold these funds separate from its corporate funds. The Company Equityholders shall not receive interest or other earnings on amounts in the Representative Expense Amount and the Related AgreementsCompany Equityholders irrevocably transfer and assign to the Representative any ownership right that they may have in any interest that may accrue on amounts in the Representative Expense Amount. The Company Equityholders acknowledge that the Representative is not providing any investment supervision, recommendations or advice. The Representative shall have no responsibility or liability for any loss of principal of the Representative Expense Amount other than as a result of its gross negligence or willful misconduct. As soon as practicable following the later of (i) the final release of the final Net Milestone Payment or (ii) the final resolution of any claims made under this Agreement, the Representative shall distribute the Representative Account Payment (if any) to the Buyer and/or its paying agent for distribution to the Company Equityholders. For tax purposes, the Representative Expense Amount shall be treated as otherwise determined having been received and voluntarily set aside by the Advisory GroupCompany Equityholders at the time of Closing. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement (Medicines Co /De), Merger Agreement (Medicines Co /De)
Representative. (a) In order to efficiently administer The Company agrees that GS Capital Partners VI, L.P. shall be the obligations specified in this Agreement agent and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon for each of the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement Stockholders and the Escrow Agreement in Optionholders to act as the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising Representative under this Agreement and the Escrow other agreements contemplated hereby in accordance with the terms of this Section 11.13. In the event of the resignation, death or incapacity of the Representative, a successor representative reasonably satisfactory to Parent shall thereafter be appointed by an instrument in writing signed by Parent and such successor representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders and the Optionholders (with full power of substitution in the premises) in connection with such matters as are reasonably necessary for the consummation of the transactions contemplated in this Agreement and the other agreements contemplated hereby including: (i) to receive all payments owing to the Stockholders or the Optionholders under this Agreement, (Cii) receive to the extent within the power of the Stockholders and Optionholders to do so, to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Stockholders and the Optionholders to review and authorize all notices claims and service of process; disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Parent any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement and the other agreements contemplated hereby, and (Dvi) in general to general, do all things and to perform all acts, including executing and delivering any agreementsall agreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, instructionsconsents, notices or instruments elections, instructions and other documents contemplated by by, or deemed advisable by the Representative to be necessary or desirable in connection with with, this Agreement, the Escrow Agreement other agreements contemplated hereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be entitled to rely on such appointment and to treat the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and duly appointed attorney-in-fact of each Company SecurityholderStockholder and Optionholder. Each Company Securityholders agrees, by virtue of Notices given to the approval Representative in accordance with the provisions of this Agreement shall constitute notice to the Stockholders and the Acquisition (and no act of such Company Securityholder), that Optionholders for all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations purposes under this Agreement.
(c) The Representative agrees to be bound by all obligations appointment of the Representative under this Agreement or the Escrow Agreement to which it is a party an agency coupled with an interest and shall take is irrevocable and any and all actions which action taken by the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9the authority granted in this Section 11.13 shall be effective and absolutely binding on each Stockholder and Optionholder notwithstanding any contrary action of or direction from such Stockholder or Optionholder, consenting to, compromising except for actions or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions omissions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s constituting willful misconduct or gross negligence. By virtue The death or incapacity, or dissolution or other termination of existence, of any Stockholder or Optionholder shall not terminate the authority and agency of the approval of Representative. Parent, Merger Sub and any other party to any document contemplated by this Agreement in dealing with the Representative may conclusively and the Acquisition and no other absolutely rely, without inquiry, upon any act of the Representative as the act of the Stockholder or Optionholder.
(d) The Representative shall not be liable to any Company SecurityholderStockholder, each Company Securityholder Optionholder or to any other Person (based on such Company Securityholder’s Pro Rata Shareother than Parent or Merger Sub), severally and not jointly, with respect to any action taken or omitted to be taken by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity its role as such) 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 Losses”) arising out of under or in connection with the Representative’s execution and performance this Agreement, unless such action or omission results from or arises out of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered willful misconduct or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct on the part of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required liable to take any action unless Stockholder or Optionholder in the event that, in the exercise of his or its reasonable judgment, the Representative has been provided with funds, security believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by Parent or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this AgreementMerger Sub.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as suchreceive reimbursement from, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and indemnified from, the Representative to satisfy Escrow Account, for any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closingand all expenses, Buyer shall afford the Representative charges and its accountantsliabilities, counsel and other representativesincluding reasonable attorneys’ fees, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf in the performance or discharge of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred its duties pursuant to this Agreement and Section 11.13 (the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The “Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingExpenses”).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Interline Brands, Inc./De)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement or hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon of the ClosingSecurityholders, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including of substitution, to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion name, place and stead of the RepresentativeSecurityholders for purposes of executing any documents and taking any actions that the Representative may, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising under this Agreement and the Escrow Agreement, (C) receive all notices and service out of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or and the Representative Engagement AgreementAgreement including in connection with any payment pursuant to Section 1.6 or claim for indemnification under Section 5.5 or Section 7. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Fortis Advisors LLC hereby accepts its appointment as the Representative. The Representative agrees shall be entitled to act engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(b) Each of the Securityholders grants to the Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Securityholders (in the name of any or all of the Securityholders or otherwise) any and all documents that the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the representativeRepresentative may, agent and attorney-in-fact of each Company Securityholderin its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Each Company Securityholders agrees, by virtue of Notwithstanding anything to the approval of contrary contained in this Agreement or in any other Contract executed in connection with the Transactions, each Indemnitee shall be entitled to deal exclusively with the Representative on all matters relating to Sections 1.3, 5.5 and 7 and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Securityholders by the Acquisition Representative and on any other action taken or purported to be taken on behalf of any Securityholders by the Representative, as fully binding upon such Securityholder.
(and no act of such Company Securityholder), that all c) All actions taken by the Representative under this Agreement, the Escrow Agreement, Agreement Representative or the Representative Engagement Agreement shall be binding upon such Company each Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(bd) The power of attorney and all authority conferred under this granted in Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: 8.1(a): (i) shall is coupled with an interest and is irrevocable; (ii) may be irrevocable and shall not be terminated delegated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event the Representative; and (iiiii) shall survive the delivery dissolution, death or incapacity of an assignment by any Company Securityholder each of the whole Securityholders.
(e) Securityholders with a majority in interest (determined based in accordance with their respective ownership of Shares as of immediately prior to Closing) have the right to remove the Representative at any time. If the Representative shall resign, die, become disabled or any fraction otherwise be unable to fulfill its responsibilities as agent of histhe Securityholders, her or its be removed, then a majority in interest of the Securityholders (determined based in accordance with their respective ownership of Shares as of immediately prior to the Escrow Amount. Without limiting Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the foregoing, the power of attorney shall be to ensure the performance of a special obligation Securityholders and, accordinglypromptly thereafter, each Company Securityholder, by virtue shall notify Purchaser of the approval of this Agreement and the Acquisition (and no act identity of such Company Securityholder), renounces successor. Any such Company Securityholder’s right to renounce this power successor shall become the “Representative” for purposes of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(df) Certain Company Securityholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under this Agreement, the Escrow Agreement and the Escrow Representative Engagement Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither To the maximum extent permissible by applicable law, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind to any Securityholder or any other Person with respect to any action or omission inaction taken or failed to be taken, by the Representative it or by its agents, in connection with its services as the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s with respect to its own willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the The Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds act in the Representative Expense Fund, (ii) second, from reliance upon any distributions of the Escrow Fund signature believed by it to the Company Shareholders or other post-closing payment at be genuine and may reasonably assume that such time as such amounts would otherwise be distributable person has proper authorization to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds sign on behalf of the Company Securityholders applicable Securityholder or otherwiseother party and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated hereby, the Representative may rely on the advice of counsel, accountants or other skilled persons, and the Representative will not be liable to any Securityholder or any other Person for anything done, omitted or suffered in good faith by the Representative based on such advice of counsel, accountants or other skilled persons, as the case may be. No provision of this Agreement or any of the transactions contemplated hereby shall require the Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or any of the transactions contemplated hereby and thereby. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions.
(g) The Representative Group shall be indemnified, defended and held harmless by the Securityholders from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including reasonable legal fees and disbursements and costs and including costs incurred in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (“Representative Expense”) arising from, based upon or with respect the Representative’s execution and performance of this Agreement, the Escrow Agreement, the Representative Engagement Agreement or any of the Transactions, or otherwise in connection with acting as the Representative, in each case as such Representative Expense is incurred. Notwithstanding anything in this Agreement To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the contrarySecurityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any restrictions or limitations on liability or indemnification obligations ofdistribution to the Securityholders, or provisions limiting in the recourse against non-partiesevent there are insufficient funds, otherwise applicable to directly from the Company Securityholders set forth elsewhere in this Agreement are Securityholders, severally and not intended to be applicable to jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the indemnities provided immunities and powers granted to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement Agreement. The powers, immunities and the Escrow Agreement.
(f) Buyer will have no liability rights to indemnification granted to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under Group in this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to : (i) books are coupled with an interest and records shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the Company (other than privileged documents), respective Securityholder and shall be binding on any successor thereto and (ii) all Company personnel as reasonably identified shall survive the delivery of an assignment by any Securityholder of the Representativewhole or any fraction of his, her or its interest in each case, to the Escrow Amount.
(h) To the extent reasonably related the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such claims under document, spreadsheet or other form of information to another party, the Claim NoticeRepresentative is not responsible for the content of such materials, nor is the Representative responsible for confirming the accuracy of any information contained in such materials or reconciling the content of any such materials with any other documents, spreadsheets or other information. The Representative shall not be liable to any Securityholder for any apportionment or distribution of payments authorized by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Securityholder to whom payment was due, but not made, shall be to recover from other Securityholders any payment in excess of the amount to which they are determined to have been entitled pursuant to this Agreement; provided, however, that the foregoing recourse limitation shall not apply in any case where such error was due to fraud or willful misconduct by the Representative. The Representative shall be entitled to rely upon the Pro Rata Amount in the Spreadsheet when setting forth any apportionment or distribution of payments required to be made pursuant to this Agreement.
(xi) access to such booksAt the Closing, recordsand without any act of any Securityholder, documents and personnel will not unreasonably interfere Purchaser shall deposit the Representative’s Expense Fund Amount with the normal operations of Buyer and its Subsidiaries or violate applicable Law or ContractRepresentative, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will to be promptly reimbursed held by the Representative (and released on the instructions of the Representative for the payment of Representative Expenses incurred by the Representative in performing its duties pursuant to this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Purchaser will be deemed to have contributed on behalf of each Securityholder, his, her or its Pro Rata Amount of the Company Securityholders).
(h) The Representative Representative’s Expense Fund will be used Amount for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined retention by the Advisory GroupRepresentative. The Representative is not acting as a withholding agent providing any investment supervision, recommendations or in any similar capacity in connection with the Representative Expense Amount, advice and has shall have no tax reporting responsibility or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable liability for any loss of principal of the Representative Representative’s Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, Securityholders will not use these receive any interest on the Representative’s Expense Fund and assign to the Representative any such interest. Subject to Advisory Group approval, the Representative may contribute funds for its operating expenses or to the Representative’s Expense Fund from any other corporate purposes and will not voluntarily make these funds available consideration otherwise distributable to its creditors in the event of bankruptcySecurityholders. As soon as practicable following reasonably determined by the completion Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s responsibilities, Expense Fund Amount originally deposited with the Representative will deliver any remaining of at the Closing that has not been used by the Representative Expense Fund pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent for further distribution to the Company Securityholders Securityholders, in accordance with each case in proportion to their respective Pro Rata Shares. and the agreements ancillary heretoAmount of such remaining funds, if any. For tax purposesthe avoidance of doubt, the Representative Representative’s Expense Fund will Amount shall not be treated as having been received deemed part of the Escrow Fund and voluntarily set aside shall not be available to satisfy any indemnification or other obligations to Purchaser hereunder. None of Purchaser or any of its Affiliates shall have any liability or obligation with respect to the use of the Representative’s Expense Fund Amount by the Company Securityholders at the time of ClosingRepresentative.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Vir Biotechnology, Inc.), Securities Purchase Agreement (Vir Biotechnology, Inc.)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement or Shareholders approves the Escrow Agreement, by virtue designation of the approval of this Agreement -------------- and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints designates the Representative as its exclusive agent for such Company Securityholder the representative of the Shareholders and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors each Shareholder with respect to all matters arising the certification of Closing Stockholders' Equity and Closing Cash under Section 1.4 hereof and claims for indemnification under this Agreement Article VIII and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated taking by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement any and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement all actions and the Acquisition (and no act making of such Company Securityholder), that all actions any decisions required or permitted to be taken by the Representative under this Agreement, including, without limitation, the Escrow Agreementexercise of the power to: (a) agree to, or the Representative Engagement Agreement shall be binding upon such Company Securityholder negotiate, enter into settlements and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholdercompromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (b) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (c) take all defenses which may be available to any Company Securityholder to contest, negate or disaffirm actions necessary in the action judgment of the Representative taken in good faith for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Shareholder with respect to the disposition, settlement or other handling of all claims under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney Article VIII and all authority conferred rights or obligations arising under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow AmountArticle VIII. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to Shareholders will be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party actions taken and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission documents executed by the Representative in connection with Article VIII, and DoveBid will be entitled to rely on any action or decision of the Representative’s services pursuant to . In performing the functions specified in this Agreement, and the Representative will not be liable to any agreements ancillary hereto while acted Shareholder in good faith, except for liability directly resulting from the absence of gross negligence or willful misconduct on the part of the Representative’s . Shareholders shall severally indemnify the Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or willful misconduct or gross negligence. By virtue on the part of the approval of this Agreement Representative and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution acceptance or administration of his duties hereunder. Any out-of-pocket costs and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be reasonably incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement connection with actions taken by the Representative pursuant to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting terms of Article VIII (including without limitation the recourse against non-parties, otherwise applicable to hiring of legal counsel and the Company Securityholders set forth elsewhere in this Agreement are not intended to incurring of legal fees and costs) will be applicable to the indemnities provided paid by Shareholders to the Representative Group by pro rata in proportion to their respective percentage equity interests in the Company Shareholders under this sectionCompany. The foregoing indemnities will survive Shareholders shall have the Closing, the resignation or removal of the right to replace ▇▇▇▇ ▇▇▇▇▇ as Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ another representative by written notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementSection 10.6 below.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Representative. (a) In order Pursuant to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of the Merger and the authorization of the form of this Agreement and by the Acquisition (and no act of such Company Securityholder)Holders, and the consummation execution and delivery of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms Letter of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoingTransmittal, the Representative shall have no obligation is appointed, authorized and empowered to act on behalf of be the Company Securityholdersexclusive proxy, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)Holders, that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The with full power of attorney and all authority conferred under this Section 2.5 and the powerssubstitution, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable to make all decisions and shall not be terminated by any determinations and to act of any Company Securityholderand execute, by operation of lawdeliver and receive all documents, by such Company Securityholder’s death or disability or any other event instruments and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and consents on behalf of the Company SecurityholdersHolders at any time, including defending all indemnity claims pursuant in connection with, and that may be necessary or appropriate to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer accomplish the intent and its agents regarding indemnity claims, dealing with Buyer and implement the Company under provisions of this Agreement and (ii) to facilitate the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions consummation of the Representative specified in or transactions contemplated by this Agreement or the Escrow Agreement Agreement, and engaging counsel and accountants in connection with the foregoing mattersactivities to be performed by or on behalf of such Company Holders under this Agreement, (including, without limitation, in connection with any and all claims for remedies brought pursuant to this Agreement). By executing this Agreement, the Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, by virtue the Representative shall have the power to take any of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign following actions on behalf of the applicable Company Securityholder Holders; (i) to give and receive notices, communications and consents under this Agreement; (ii) to receive and distribute payments and consideration deliverable pursuant to this Agreement; (iii) to waive any provision of this Agreement; (iv) to assert any claim or other party.
institute any contest or action arising out of or relating to this Agreement; (dv) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to investigate, defend, contest or litigate any Claim initiated by any Person against the Representative in connection with its services under this Agreement and the Escrow Agreement his capacity as such; (such Company Securityholders, including their individual representatives, collectively hereinafter referred vi) to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders receive process on behalf of any kind or all Company Holders in any such contest or Claim; (vii) to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other third party intermediaries with respect to any disputes arising under this Agreement; (viii) to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement; and (ix) to make, execute, acknowledge and deliver all such other agreements, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in his sole and absolute discretion, may consider necessary or omission by proper or convenient in connection with or to carry out the activities described in this Section 9.6 and the transactions contemplated hereby. Notice or communications to or from the Representative shall constitute notice to or from any Company Holder. Any portion of the $150,000 deposited with the Representative in connection accordance with Section 2. 1(c) for the Representative’s services pursuant purpose of satisfying its obligations under this Agreement that has not been expended or obligated on or before June 30, 2008, or for which the Representative has determined in good faith may be required to satisfy its obligations under this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received shall he delivered by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered Parent and released pro rata by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund Parent to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to Holders in accordance with the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in Allocation Schedule. In the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse withholds funds as provided in the Company Securityholders the amount of such indemnified Representative Loss received immediately preceding sentence, any part thereof not expended or obligated shall be promptly delivered by the Representative to the extent attributable Parent and released pro rata by the Parent to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, Holders in accordance with the Allocation Schedule as soon as reasonably determined by Representative shall that such funds will not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its fulfill it obligations under this Agreement or, in shall be delivered by the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Parent and released pro rata by the Parent to the Company Securityholders Holders in accordance with the Allocation Schedule. Company Holders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as shares of immediately prior to Parent Common Stock held thereby may, upon the Closing shall resignation, death, disability or incapacity of the Representative, appoint in writing a successor Representative. Notwithstanding anything herein to act as the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, representative and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records attorney-in-fact of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity Holders in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (ExlService Holdings, Inc.), Merger Agreement (ExlService Holdings, Inc.)
Representative. By executing this Agreement, each of the TRA Parties shall be deemed to have irrevocably appointed the Representative as its agent and attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such TRA Parties which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including: (ai) In order execution of the documents and certificates required pursuant to efficiently administer this Agreement; (ii) except to the obligations specified extent provided in this Agreement Agreement, receipt and efficiently represent the interests forwarding of notices and communications pursuant to this Agreement; (iii) administration of the Company Securityholders with respect provisions of this Agreement; (iv) any and all consents, waivers, amendments or modifications deemed by the Representative to all matters arising be necessary or appropriate under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) taking actions the Representative is authorized to take pursuant to the other provisions of this Agreement; (vi) negotiating and no act compromising, on behalf of such Company Securityholder)TRA Parties, any dispute that may arise under, and the consummation exercising or refraining from exercising any remedies available under, this Agreement and executing, on behalf of the Acquisition such TRA Parties, any settlement agreement, release or participating in the Acquisition other document with respect to such dispute or remedy; and receiving the benefits thereof(vii) engaging attorneys, including the right to receive the consideration payable in connection with the Acquisitionaccountants, each Company Securityholder appoints the Representative as its exclusive agent for agents or consultants on behalf of such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes TRA Parties in connection with this Agreement and paying any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof fees related thereto on behalf of such Company Securityholder and its successorsTRA Parties, subject to reimbursement by such TRA Parties. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) upon 30 days’ written notice to Buyer and PubCo, provided that the Company Securityholders; In Representative has found a replacement to become the Representative, which is acceptable to PubCo in its reasonable discretion. If PubCo determines in its reasonable discretion that such eventreplacement is not acceptable, PubCo shall identify a replacement to become the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior Representative, which is acceptable to the Closingresigning Representative in its reasonable discretion. If the resigning Representative is unable to perform his, her or determines in its obligations under this Agreement or, in reasonable discretion that the case of a Representative that replacement identified by PubCo is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Personacceptable, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the resigning Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting PubCo shall cooperate in good faith other than as to identify a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available replacement acceptable to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingeach such party.
Appears in 2 contracts
Sources: Tax Receivable Agreement (Symbotic Inc.), Merger Agreement (SVF Investment Corp. 3)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent transactions contemplated hereby, including (i) the interests determination of the Net Asset Value and Adjusted Base Purchase Price and (ii) the defense and/or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI or Article VIII hereof, the Company Securityholders Stockholders, by the approval of the Merger and adoption of this Agreement, the holders of Options or Warrants by executing amendments to such Options or Warrants, as applicable, pursuant to Section 1.11(f) hereof, the Principal Stockholders, by their execution of the Stockholder Agreement, and the Management Participants, by their execution of the Management Participant Agreement, shall each be deemed to have designated the Representative as their representative.
(b) The Company Stockholders, by the approval of the Merger and adoption of this Agreement, and the holders of Options or Warrants by executing amendments to such Options or Warrants, as applicable, pursuant to Section 1.11(f) hereof, shall each be deemed to have authorized the Representative (i) to make all decisions relating to the determination of the Net Asset Value and the Adjusted Base Purchase Price, (ii) to take all action necessary in connection with respect the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI or Article VIII hereof, (iii) after the Effective Time, to give and receive all matters arising notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated or permitted by this Agreement or the Indemnification Escrow Agreement, Agreement to be taken by virtue or on behalf of the approval Equity Holders.
(c) The Buyer shall be able to rely conclusively on the instructions and decisions of this Agreement the Representative as to the determination of the Net Asset Value and the Acquisition (Adjusted Base Purchase Price, the settlement of any claims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI or Article VIII hereof or any other actions required or contemplated or permitted to be taken by the Representative hereunder, and no act party shall have any cause of such Company Securityholder), and action against the consummation Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including Representative.
(d) The Representative will have the right to receive act as the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion representative of the RepresentativeEquity Holders, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement Equity Holders and in the Representative Engagement Agreement, to take any and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions required or permitted to be taken by the Representative under this Agreement, with respect to any claims (including payment thereof) made pursuant to Section 6.1 and with respect to any actions to be taken by the Representative pursuant to the terms of the Escrow Agreement. All decisions and actions by the Representative, including without limitation any agreement between the Representative and the Buyer relating to the determination of the Net Asset Value and the Adjusted Base Purchase Price or the Representative Engagement Agreement defense or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI or Article VIII hereof, shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderall of the Equity Holders, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm no Equity Holder shall have the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreementobject, the Escrow Agreementdissent, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law protest or otherwise against contest the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementsame.
(e) The Representative may resign at (or any time of the directors, officers, agents, employees or Affiliates thereof) shall incur no liability to the Equity Holders with respect to any action taken or suffered by giving thirty (30) days’ notice the Representative in reliance upon any notice, direction, instruction, consent, statement, or other document believed by the Representative to Buyer be genuinely and duly authorized, nor for any other action or inaction with respect to distributions of the Indemnification Escrow Shares, any defense or settlement of any claims, and the Company Securityholders; In such eventmaking of payments with respect thereto, nor with respect to voting or failing to vote the successor Indemnification Escrow Shares, except to the extent resulting from the Representative's own willful misconduct or gross negligence. The Representative shall be selected may, in all questions arising under this Agreement, rely on the advice of counsel, and for anything done, omitted, or suffered in good faith by the Company Securityholders holding at least a majority of Company Ordinary Shares (Representative in reliance on an as converted basis) as of immediately prior such advice, shall not be liable to the Closing. If Equity Holders.
(f) In the event that the Representative is dies or becomes unable to perform his, her or its obligations under this Agreement orresponsibilities as the Representative or resigns from such position, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing Trinity Ventures shall appoint a successor new Representative. Notwithstanding anything herein to the contrary, and if (i) the Representative resigns or otherwise is unable within 30 days of such death, inability to perform his, her or its obligations as suchresponsibilities or resignation of the Representative, and (ii) no successor Representative is appointed pursuant Trinity Ventures fails to the foregoing within twenty (20) days, then, without any further action of or consent by any Personappoint a new Representative, the Advisory Group, Equity Holders receiving an aggregate of greater than 50% of the Adjusted Merger Consideration shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After The Buyer and the Closing, Buyer Surviving Corporation shall afford be entitled to rely conclusively on a certificate from the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice respect to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified any action taken by the Representative, in each case, to and no party shall have any cause of action against the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or for any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed action taken by the Representative (on behalf of Buyer in reliance upon such a certificate from the Company Securityholders)Representative.
(h) The Representative Expense Fund will Company Stockholders, by the approval of the Merger and adoption of this Agreement, and the holders of Options or Warrants by executing amendments to such Options or Warrants, as applicable, pursuant to Section (a) hereof, shall each be used for deemed to (i) agree and authorize the purposes Escrow Agent to withhold from the Indemnification Escrow Shares, if any, otherwise payable to the Equity Holders under the terms of paying directlythe Indemnification Escrow Agreement a number of shares having a value (using a price of $12.50 per share) equal to the reasonable costs and expenses (including reasonable professional fees) incurred by, or reimbursing reasonably anticipated by the Representative for any third party expenses to be incurred pursuant to this Agreement and by, the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the representation of the Equity Holders in any proceeding arising out of this Agreement (including all matters concerning claims for indemnification under Article VI or Article VIII of this Agreement) or the transactions or agreements related hereto (the "Representative Expense AmountFees"); (ii) agree and authorize the Representative to withhold Buyer Common Shares (valued at $12.50 per share) evidencing the Representative Fees from any shares otherwise issuable to the Equity Holders pursuant to Section 1.12 hereof (to the extent such fees are not withheld from the Escrow Shares); and (iii) agree to reimburse the Representative for the Representative Fees.
(i) The provisions of this Section 1.14 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Equity Holder may have in connection with the transactions contemplated by this Agreement. Remedies available at law for any breach of the provisions of this Section 1.14 are inadequate; therefore, the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.14. The provisions of this Section 1.14 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Equity Holder, and has no tax reporting any references in this Agreement to a Equity Holder or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund Equity Holders shall mean and irrevocably transfer and assign include the successors to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate fundsEquity Holder's rights hereunder, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available whether pursuant to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiestestamentary disposition, the Representative will deliver any remaining laws of the Representative Expense Fund to the Paying Agent for further descent and distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingor otherwise.
Appears in 2 contracts
Sources: Merger Agreement (Akamai Technologies Inc), Merger Agreement (Akamai Technologies Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of Effective upon approving this Agreement and the Acquisition transactions contemplated hereby or by executing and delivering a Stockholder Written Consent, Stockholder Letter of Transmittal, Optionholder Letter of Transmittal or Warrant Holder Consent Agreement, each Stockholder (and no act of such Company Securityholderother than Stockholders properly exercising appraisal rights for Dissenting Shares), Vested Optionholder and the consummation Warrant Holder will, as a specific term of the Acquisition or participating Merger, be deemed to have agreed that:
(a) The Representative is irrevocably constituted and appointed as the representative, exclusive agent, proxy, and attorney in the Acquisition and receiving the benefits thereof, fact (coupled with an interest) for all such Persons for all purposes under this Agreement including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company SecurityholderPerson’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including behalf: (i) to (A) act according to consummate the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising transactions contemplated under this Agreement and the Escrow Agreementother agreements, instruments, and documents contemplated hereby or executed in connection herewith, (Cii) receive to negotiate Claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Proceeds contemplated by Section 3.03 and Claims for indemnification under Article XI), (iii) to cause to be received or disbursed to, any Indemnifying Securityholder any funds received on behalf of such Indemnifying Securityholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise, (iv) to direct withholding of any amounts to be received by any Indemnifying Securityholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Indemnifying Securityholders) any and all notices obligations or liabilities of any Indemnifying Securityholder or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Indemnifying Securityholders) in connection with the adjustment of Closing Proceeds contemplated by Section 3.03 or the indemnification of the Parent Indemnified Parties under Article XI), (v) to execute and service deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of process; any Indemnifying Securityholder) and (Dvi) in general to do take, or refrain from taking, all things and other actions to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated be taken by or on behalf of any Indemnifying Securityholder or as deemed advisable necessary by the Representative in connection with this Agreement, the Escrow Agreement and any other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The powers, immunities and rights to indemnification granted to the Representative Engagement AgreementGroup hereunder: (i) are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the Merger and the death, incapacity, bankruptcy, dissolution or liquidation of each Indemnifying Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Securityholder of the whole or any fraction of his, her or its interest in the Indemnification Escrow Funds. Notwithstanding All decisions and actions by the foregoingRepresentative or omitted to be taken by the Representative shall be binding upon each Indemnifying Securityholder and such Indemnifying Securityholder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Securityholder, and no Indemnifying Securityholder shall have the right to object, dissent, protest or otherwise contest the same, except for decisions, actions or omissions of the Representative constituting willful misconduct. The Representative shall have no obligation to act on behalf of duties or obligations hereunder or under the Company SecurityholdersEscrow Agreement, including any fiduciary duties, except as expressly provided herein, those set forth herein and in the Escrow Agreement, and such duties and obligations shall be determined solely by the express provisions of this Agreement and in the Representative Engagement Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.;
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Indemnifying Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement Representative engagement agreement (such Company Indemnifying Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”), shall be liable to any Indemnifying Securityholder for any act done or omitted hereunder, under the Escrow Agreement or under the Representative engagement agreement as the Representative Group while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Representative Group shall be indemnified, defended, held harmless and reimbursed by each Indemnifying Securityholder severally (based on each Indemnifying Securityholder’s Indemnity Allocation Percentage), and not jointly, against all losses, liabilities, claims, damages, fees, costs, expenses (including reasonable attorneys’ fees and costs of other skilled professional and in connection with seeking recovery from insurers), judgments, fines and amounts paid or incurred by the Representative Group in connection with any Claim, action, suit or proceeding to which the Representative Group is made a party by reason of the fact that such Person is or was acting as the Representative Group pursuant to the terms of this Agreement (including, for the avoidance of doubt, the satisfaction of payment obligations on behalf of the Indemnifying Securityholder) (collectively, the “Representative Expenses”). Any and all amounts paid or incurred by the Representative Group in connection with any Claim, action, suit or proceeding to which the Representative Group or such other Person is made a party by reason of the fact that it is or was acting as the Representative Group pursuant to the terms of this Agreement are on behalf of the Indemnifying Securityholders (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Stockholder or otherwise);
(c) The Representative Group shall not incur any liability to any Indemnifying Securityholder by virtue of the Company Securityholders failure or refusal of the Representative Group for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder. The Representative Group shall have no liability in respect of any kind with respect action, Claim or proceeding brought against any such Person by any Indemnifying Securityholder, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith;
(d) Representative represents and warrants that it is a limited liability company, duly organized, validly existing and in good standing under the Laws of Delaware, and it has the requisite limited liability company power and authority, and has taken all limited liability company action necessary or omission required, to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Representative and, assuming that this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of Representative, subject to the Laws of agency;
(e) The Representative may resign upon thirty (30) day notice in the event of circumstances rendering it impracticable for the Representative in connection with the to continue to effectively serve, including amendments increasing Representative’s services responsibilities without its consent or failure to pay amounts due to Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. The rights and obligations of the Representative pursuant to this Agreement, and the grant of authority to such Representative set forth in this Section 12.13 may be assigned from time to time or a vacancy in such position may be filled upon written consent of the Indemnifying Securityholders receiving a majority-in-interest of the Merger Consideration received in the aggregate by the Indemnifying Securityholders; provided, however, that no such assignment shall be effective unless and until (i) evidence of the consent referred to in the immediately preceding sentence is provided to Parent and (ii) the assignee of such rights and obligations becomes a party to this Agreement by executing a joinder in a form reasonably acceptable to Parent. Upon any agreements ancillary hereto while acted such assignment, the Person accepting and assuming the rights and obligations of the Representative shall become, for all purposes, the Representative hereunder;
(f) If the Representative incurs or pays or causes to be paid, any Representative Expenses (on behalf of the Indemnifying Securityholders) in good faithconnection with any obligation or liability of the Representative or of an Indemnifying Securityholder in connection with the transactions contemplated hereby (including, except for liability directly resulting the avoidance of doubt, the Purchase Price Adjustments or the indemnification of the Parent Indemnified Parties under Article XI), any such Representative Expenses incurred may be reimbursed, first, when and as incurred, from the Representative’s willful misconduct or gross negligence. By virtue Representative Holdback Amount, second, and, if not so reimbursed from the Representative Holdback Amount, then the Representative shall be reimbursed from any distribution of the approval Indemnification Escrow Funds otherwise distributable to the Indemnifying Securityholders at the time of this Agreement distribution, and third, the Acquisition Representative shall be indemnified, held harmless and no other act of any Company Securityholder, reimbursed directly by each Company Indemnifying Securityholder severally (based on such Company each Indemnifying Securityholder’s Pro Rata ShareIndemnity Allocation Percentage), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless for such amount(s)). The Indemnifying Securityholders acknowledge that the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do shall not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance expend or risk its own funds on behalf or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Company Securityholders Escrow Agreement or otherwisethe transactions contemplated hereby or thereby. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer The Representative Holdback Amount shall afford be held by the Representative in a segregated client account and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to shall be used (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, directly or reimbursing the Representative for any third party expenses Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement and the Related Agreementsor any Representative letter agreement, or (ii) as otherwise determined by the Advisory Group. The Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Representative Holdback Amount other than as a result of its gross negligence or willful misconduct. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Holdback Amount, and has no tax reporting or income distribution obligations. The Company Indemnifying Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer Holdback Amount and assign to the Representative any ownership right that they may otherwise have had in any such interest or earningsinterest. The Representative will not be liable for any loss of principal of Subject to Advisory Group approval, the Representative Expense Fund while acting in good faith other than as a result may contribute funds to the Representative Holdback Amount from any consideration otherwise distributable to the Indemnifying Securityholders. Following the resolution of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes all Claims and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion termination of the Representative’s responsibilitiesduties and obligations hereunder, under the Escrow agreement and under the Representative engagement agreement, and upon full reimbursement of all Representative Expenses incurred by the Representative in the performance of its duties hereunder, under the Escrow Agreement or under the Representative engagement agreement, the Representative will deliver any shall distribute, or caused to be distributed, all remaining funds in the Representative Holdback Amount held by it on behalf of the Representative Expense Fund Indemnifying Securityholders to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. Indemnifying Securityholders;
(h) The Representative shall be entitled to: (i) rely upon the Final Securityholder Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the agreements ancillary hereto. For tax purposesapplicable Indemnifying Securityholder or other party; and
(i) Notwithstanding anything to the contrary set forth herein, the Representative Expense Fund will Group and its Affiliates shall not be treated as having been received and voluntarily set aside liable for any loss to any Indemnifying Securityholder for any action taken or not taken by the Company Securityholders at Representative Group or for any act or omission taken or not taken in reliance upon the time of Closingactions taken or not taken or decisions, communications or writings made, given or executed by the Parent or the Merger Sub or the Surviving Corporation.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementThe Representative shall, by virtue of the approval of this Agreement Merger and the Acquisition (and no act of such Company Securityholder)resolutions adopted by the Preferred Stockholders, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful be irrevocably appointed attorney-in-fact effective upon and authorized and empowered to act, for and on behalf of any or all of the Closing, Preferred Stockholders (with full power and authority of substitution in the premises) in connection with:
(a) the determination of the amount of Merger Consideration pursuant to Section 1.5, including to take all such actions as are authorized in such Company Securityholder’s name Section, and to act with respect to such other matters as are reasonably necessary for the consummation of the transactions contemplated thereby; and
(b) the indemnity provisions of Article VI as they relate to the Preferred Stockholders generally, the Escrow Agreement, the notice provisions of this Agreement and such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby, including to act as the representative of the Preferred Stockholders to review and authorize all setoffs, claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Brooktrout and the Surviving Corporation any claims asserted thereunder and to authorize payments to be made with respect thereto, and to take such Company Securityholder’s behalf for all purposes further actions as are authorized in this Agreement. The Representative shall not be liable to any Preferred Stockholder, Brooktrout, the Surviving Corporation or any other person with respect to any action taken or omitted to be taken by the Representative under or in connection with this Agreement and any agreements ancillary hereto including to (A) act according to unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the terms of this Agreement and the Escrow Agreement in the absolute discretion part of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or . The Preferred Stockholders shall severally indemnify the Representative Engagement Agreement. Notwithstanding the foregoing, and hold the Representative shall have no obligation to act harmless against any loss, liability or expense incurred without fraud, gross negligence, willful misconduct or bad faith on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations part of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the acceptance or administration of the duties of the Representative hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative’s execution . Each of Brooktrout, Canal and performance the Surviving Corporation, and each of their respective Affiliates, shall be entitled to rely on such appointment and to treat the Representative as the duly appointed attorney-in-fact of each Preferred Stockholder. Each Preferred Stockholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and each Preferred Stockholder who receives any portion of the Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority and acknowledges any agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of Brooktrout and Canal to enter into this Agreement and any agreements ancillary heretois based, in each case as such Representative Loss is suffered or incurred; providedpart, that in on the event that any such Representative Loss is finally adjudicated appointment of a representative to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds act on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been Preferred Stockholders as provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this AgreementSection 1.14.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Brooktrout Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Each Shareholder hereby designates and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition appoints (and no act each Permitted Transferee of each such Company SecurityholderShareholder is hereby deemed to have so designated and appointed) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (the “Representative”), and the consummation of the Acquisition acting jointly or participating in the Acquisition and receiving the benefits thereofindividually, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorneyattorneys-in-fact effective upon the Closing, with full power and authority in of substitution for each of them, to serve as the representative of such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and Shareholder to perform all actssuch acts as are required, authorized or contemplated by this Agreement to be performed by such Shareholder (including executing the voting of the Subject Shares in accordance with Sections 4(a) and delivering 4(b)), and hereby acknowledges that the Representative shall be authorized to take any agreementsaction so required, certificates, receipts, instructions, authorized or contemplated by this Agreement. Each such Shareholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Shareholder. Each such Shareholder hereby authorizes (and each such Permitted Transferee of such Shareholder shall be deemed to have authorized) the other parties hereto to disregard any notices or instruments contemplated other action taken by or deemed advisable in connection with such Shareholder pursuant to this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement for notices and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, Representative. Purchaser is and will be entitled to rely on any action so taken or any notice given by the Representative Engagement and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement shall to be binding upon given to any such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which Shareholder. A successor to the Representative may be available to any Company Securityholder to contest, negate or disaffirm the action chosen by a majority in interest of the Shareholders; provided that notice thereof is given by the new Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedto Purchaser.
(b) The Notwithstanding the generality of Section 6(a), each Shareholder hereby constitutes and appoints the Representative, with full power of attorney and all authority conferred under this Section 2.5 and substitution, as the powers, immunities and rights to indemnification granted proxy pursuant to the Representative Group hereunder: provisions of the Maryland General Corporation Law and attorney of such Shareholder, and hereby authorizes and empowers the Representative, acting individually or jointly, to represent, vote and otherwise act (i) shall be irrevocable and shall not be terminated by voting at any act meeting of any Company Securityholderthe shareholders of the Company, by operation of law, by such Company Securityholder’s death written consent in lieu thereof or disability or any other event and (iiotherwise) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all the Subject Shares owned or held by such Shareholder regarding the matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (iiSections 4(a) and (iii4(b) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or until the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closingsame extent and with the same effect as such Shareholder might or could do under applicable law, rules and regulations. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed The proxy granted pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, immediately preceding sentence is coupled with an interest and shall be the Representative for irrevocable. Each Shareholder hereby revokes any and all purposes hereunder until replaced in accordance previous proxies or powers of attorney granted with the foregoing by the Company Securityholders. The immunities and rights respect to indemnification shall survive the resignation or removal any of the Representative Subject Shares owned or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementheld by such Shareholder.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Voting Agreement (Morgan Stanley)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement Principals and WWG hereby appoints ▇▇▇▇▇▇▇ as his or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact (the "Representative") (i) to give and receive notices and communications with respect to the provisions of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, (ii) to amend the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action terms of the Representative taken in good faith under this Agreement, (iii) to agree to, negotiate, enter into settlements or compromises of matters arising under the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power provisions of attorney and all authority conferred under this Section 2.5 and the powersAgreement, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (iiiv) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, in the Escrow Agreement, or judgment of the Representative Engagement Agreement (including entering into any amendment of same) for and to be taken on behalf of the Company SecurityholdersPrincipals and WWG under such provisions of this Agreement. Such agency and that of any successor representative is irrevocable and coupled with an interest; provided, including defending all indemnity claims pursuant however, the Representative shall have no authority to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer act on behalf of any Principal and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement WWG with respect to all matters arising hereunder or thereunder, taking any and all other actions of an indemnity claim under Section 7.2.2. In the event the Representative specified in refuses to, or contemplated by this Agreement or is no longer capable of, serving as the Escrow Agreement and engaging counsel and accountants in connection with Representative hereunder, the foregoing matters. Without limiting other Principals shall promptly appoint a successor Representative who shall thereafter be the generality of the foregoing, by virtue of the approval of this Agreement successor Representative hereunder and the Acquisition (Representative shall serve until such successor is duly appointed and no qualified to act of such Company Securityholder), each Company Securityholder grants hereunder. The Principals and WWG hereby agree that the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders not have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of or any kind with respect Subsidiary for any action he takes or omits to take hereunder (or under any agreement or instrument referred to herein) in his capacity as Representative, unless such action or omission constitutes bad faith or willful misconduct by the Representative. Notices or communications to or from the Representative shall constitute notice to or from the Principals and/or WWG in connection with the Representative’s services pursuant respect of matters relating to this Agreement. Any decision, and any agreements ancillary hereto while acted in good faithact, except for liability directly resulting from the Representative’s willful misconduct consent or gross negligence. By virtue instruction of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not constitute a decision of all of the Principals and WWG, and shall be required to take final, binding and conclusive upon each Principal and WWG, and the Purchaser may rely upon any action unless the Representative has been provided with fundsdecision, security act, consent or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal instruction of the Representative as being the decision, act, consent or the termination instruction of this AgreementWWG and each and every Principal.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MDC Partners Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement Sellers hereby constitutes and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative to act as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising Representative under this Agreement and the Minority Sellers' Incremental Tax Payment Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things as and to perform all acts, including executing the extent provided herein and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreementtherein. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf Each of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative Sellers agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend indemnify and hold harmless the Representative Group (by reason of his acting or failing to act in the case connection with any of the Advisory Group, in their capacity as such) from transactions contemplated hereby or by the Minority Sellers' Incremental Tax Payment Escrow Agreement and against any and all loss, liability or expense the Representative may sustain or incur as a result of serving as Representative hereunder or under the Minority Sellers' Incremental Tax Payment Escrow Agreement, except such losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs liabilities and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or which are determined in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated an arbitration proceeding to have been directly caused by resulted primarily from the gross negligence or willful misconduct of the Representative, . Each of the Sellers agrees that the Representative will reimburse shall have no liability whatsoever to any Seller or such Seller's beneficiaries, heirs or personal representatives for any matters arising out of this Agreement or the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) firstMinority Sellers' Incremental Tax Payment Escrow Agreement except, the funds in the Representative Expense Fund, (ii) second, from any distributions case of the Escrow Fund to the Company Shareholders or other post-closing payment at Sellers, for liability for such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses matters which are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that determined in the event that any such Representative Loss is finally adjudicated an arbitration proceeding to have been directly caused by resulted primarily from the gross negligence or willful misconduct of the Representative, . Each of the Sellers hereby agrees to reimburse the Representative will reimburse upon the Company Securityholders the amount request of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence for all reasonable expenses, disbursements and advances incurred or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred made by the Representative in performing such actionsthe performance of his duties under this Agreement or under the Minority Sellers' Incremental Tax Payment Escrow Agreement. Notwithstanding anything The Representative shall have the authority to act on behalf of and to bind each of the Sellers for purposes of the provisions of this Agreement and the Minority Sellers' Incremental Tax Payment Escrow Agreement to the extent set forth in this Agreement to and the contraryMinority Sellers' Incremental Tax Payment Escrow Agreement, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementrespectively.
(eb) The initial Representative may resign at hereunder shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. In the event that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for any time reason, shall fail or be unable to continue to serve as Representative, whether by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such eventreason of his death, incapacity, resignation or otherwise, then the successor Representative shall be selected elected by the Company Securityholders holding at least a majority holders of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (Seller Percentages reflected on an as converted basis) as Exhibit A hereto. The rights, powers, privileges and obligations of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no named hereunder shall be possessed by any successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholderssame effect as though such successor had originally been a party to this Agreement. The immunities and rights to indemnification shall survive the resignation or removal of word "Representative" as used in this Agreement means the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementsuccessor representative acting hereunder.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order Subject to efficiently administer the obligations specified in terms and conditions of this Agreement and efficiently represent Section 10.19, Tower Arch Capital, L.P. is designated as the interests Representative to act on behalf of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementClass A Common Unitholders and Class B Unitholders for certain limited purposes, by virtue of the approval as specified herein. Approval of this Agreement by a majority of the Members (as defined in the Company's limited liability company agreement) will, to the maximum extent permitted under applicable Law, constitute knowing and the Acquisition (irrevocable ratification and no act approval of such Company Securityholder)designation by the majority Unitholders, and the consummation authorization of the Acquisition or participating Representative to serve in the Acquisition and receiving the benefits thereof, such capacity (including the right exclusive power to receive the consideration payable in connection negotiate and settle any and all disputes with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising Buyer or Merger Sub under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Paying Agent Agreement), and will also constitute a reaffirmation, approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative Engagement on behalf of the Class A Common Unitholders and Class B Unitholders in this Agreement and the other documents delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement), in each case, whether entered into or taken before, on or after the date of such approval. Notwithstanding The Representative may resign at any time and may be removed only by the foregoingvote of Persons that collectively owned more than 50% of the Class A Common Units and Class B Units as of immediately prior to the Effective Time, voting as a single class (other than the Class A Common Units and Class B Units cancelled pursuant to Section 1.04(d)) (such Persons, the "Majority Holders"). The designation of the Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence with respect to the resignation or removal of the Representative, such designation is irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any of the Class A Common Unitholders or Class B Unitholders. In the event that a Representative has resigned or been removed in accordance with this Section 10.19(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal, or appointment of a Representative will be delivered by the Representative to Buyer promptly after such action is taken. The power of attorney granted in this Section 10.18(a) is coupled with an interest and is irrevocable, may be delegated by the Representative and shall survive the death or incapacity of each Class A Common Unitholder or Class B Unitholder.
(b) The Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement); provided, however, that the Representative will have no obligation to act on behalf of the Company SecurityholdersClass A Common Unitholders or Class B Unitholders. The Company, except as expressly provided hereinthe Surviving Company, in Buyer, Merger Sub, the Escrow Agreement and in Agent, the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement Paying Agent and the Acquisition (and no act of such Company Securityholder), that all Firm will be entitled to rely on the actions taken by the Representative under this Agreement, without independent inquiry into the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action capacity of the Representative taken in good faith under this Agreementto so act. All actions, notices, communications and determinations by the Representative to carry out such functions will conclusively be deemed to have been authorized by, and will be binding upon, the Escrow Agreement Class A Common Unitholders and Class B Unitholders. Neither the Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors will have any liability to Buyer, Merger Sub, the Company, the Surviving Company, the Class A Common Unitholders or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powersClass B Unitholders, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole their respective Affiliates, or any fraction Person acting on behalf of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall with respect to actions taken, or omitted to be to ensure the performance of a special obligation and, accordingly, each Company Securityholdertaken, by virtue the Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), except the Representative will be liable for its actual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken. The Representative will be entitled to engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the approval of this Agreement Representative) will be entitled to conclusively rely on the opinions and the Acquisition (and no act advice of such Company SecurityholderPersons in all matters. The Representative (for itself, and for its officers, directors, employees, partners (general or limited), renounces members, managers, Advisors) will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such Company Securityholder’s right capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and to renounce this power full indemnification against any liabilities, losses, damages, obligations, costs or expenses arising out of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees actions taken or omitted to be bound taken in its capacity as Representative (except for those arising out of the Representative's actual fraud as finally determined by all obligations a court of competent jurisdiction from which no further appeal may be taken), including the costs and expenses of investigation, defense, settlement or adjudication of any action, suit, claim, investigation, or proceeding, from the Class A Common Unitholders and Class B Unitholders (including from funds paid to the Representative under this Agreement or otherwise received by it in its capacity as the Escrow Agreement Representative, or funds to which it is a party and shall take any and all actions which be distributed to the Representative believes are necessary Class A Common Unitholders or appropriate Class B Unitholders under this AgreementAgreement at its direction, the Escrow Agreement, pursuant to or the Representative Engagement in connection with this Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel Paying Agent Agreement)) and accountants all payments required to be made under ARTICLE I are expressly subject to this Section 10.19(b). Each Class A Common Unitholder and Class B Unitholder will be responsible for its pro rata portion of any amount owed to the Representative in connection accordance with this Section 10.19(b) based upon the foregoing mattersnumber of Class A Common Units or Class B Units held by such Class A Common Unitholder or Class B Unitholder immediately prior to the Closing as a proportion of the Aggregate Fully-Diluted Units (as finally calculated by Section 1.07(e)). Without limiting the generality In furtherance of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding notwithstanding anything in this Agreement to the contrary, any restrictions the Representative will have the power and authority to set aside and retain additional funds paid to or limitations on liability or indemnification obligations ofreceived by it, or provisions limiting the recourse against non-parties, otherwise applicable direct payment of additional funds to be paid to the Company Securityholders set forth elsewhere in Class A Common Unitholders or Class B Unitholders as Merger Consideration pursuant to this Agreement at Closing or thereafter (including to establish such reserves as the Representative determines in good faith to be appropriate for such costs and expenses that are not intended then known or determinable). The relationship created herein is not to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation construed as a joint venture or removal any form of the Representative partnership between or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of among the Representative or any member Class A Common Unitholder or Class B Unitholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Advisory Group and the Closing and/or Representative nor any termination of this Agreement and the Escrow Agreementits Affiliates owes any fiduciary or other duty to any Class A Common Unitholder or Class B Unitholder.
(fc) Each Buyer will have no liability to the Company Securityholders or otherwise arising out Party (on its own behalf, and on behalf of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documentsGroup), and (ii) all the Company personnel acknowledges that the Representative is party to this Agreement solely for purposes of serving as reasonably identified by the "Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract" hereunder, and no action, suit, claim, investigation, or proceeding will not otherwise prejudice be brought by, or on behalf of, any Buyer Party or the rights or privileges Buyer Group (including attorney-client privileges) of Buyer or its Subsidiaries (including including, after the Effective Time, the Surviving Company and its Subsidiaries) under against the Representative with respect to this Agreement or the Transactions, or any applicable Lawstatement, and certificate, instruction, opinion, instrument or other documents delivered hereunder (y) with it being understood that any covenant or agreement of or by the reasonable out-"parties" or "each of the parties" will not be deemed to require performance by, or be an agreement of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed , the Representative unless performance by the Representative (on behalf of is expressly provided for in such covenant or the Company SecurityholdersRepresentative expressly so agrees in writing).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Primoris Services Corp)
Representative. (a) In order to efficiently administer the obligations specified transactions contemplated hereby, the Stockholders hereby designate the Representative as their representative, attorney-in-fact and agent for all purposes set forth herein and hereby exclusively authorize the Representative to:
(i) take all actions required or permitted by, and exercise all rights granted to, the Representative in this Agreement or the Escrow Agreement;
(ii) review all Contingent Payment Statements, deliver any Contingent Payment Objection Notice and efficiently represent discuss, negotiate, resolve and fully and finally settle on behalf of the interests Stockholders or Key Personnel, as applicable, any disputes with respect to the determination of each Final Contingent Payment Statement and the final determination of the amounts therein pursuant to Section 1.4;
(iii) review the Closing Statement, deliver any Objection Notice with respect thereto, and discuss, negotiate, resolve and fully and finally settle on behalf of the Stockholders, any Objection Items or other disputes with respect to the determination of Closing Net Working Capital and the final determination of any adjustment to the Purchase Price pursuant to Section 1.3;
(iv) take all action necessary in connection with the waiver of any condition to the obligations of the Company Securityholders or the Stockholders to consummate the transactions contemplated hereby;
(v) discuss, negotiate, resolve and fully and finally settle on behalf of the Stockholders any claims for indemnification by any Buyer Indemnified Party pursuant to this Agreement;
(vi) give and receive notices and communications to or from Buyer (on behalf of itself or any other Buyer Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby;
(vii) receive and accept service of legal process in connection with respect to all matters any claim or other proceeding against the Stockholders or the Company arising under this Agreement or the Escrow Agreement;
(viii) negotiate, by virtue undertake, compromise, defend, resolve and settle any suit, proceeding or dispute under this Agreement or the Escrow Agreement on behalf of the approval of this Agreement Stockholders; execute and deliver all agreements, certificates and documents required or deemed appropriate by the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable Representative in connection with any of the Acquisitiontransactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(ix) execute and deliver all agreements, each Company Securityholder appoints certificates and documents required or deemed appropriate by the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(x) engage special counsel, accountants and other advisors and incur such other expenses in connection with any agreements ancillary hereto including to (A) act according to of the terms of transactions contemplated by this Agreement and or the Escrow Agreement in the absolute discretion Agreement;
(xi) agree to and approve of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect modifications or amendments to all matters arising under this Agreement and or to the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering agreements of such modification or amendment;
(xii) take all other actions (including defending or enforcing any agreementsactions, certificatesand to make, receiptsdeliver and sign any certificate, instructionsnotice, notices consent or instruments contemplated by instrument required or deemed advisable permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement) necessary or appropriate in the reasonable judgment of the Representative in connection with this Agreement, any transaction contemplated hereunder or for the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance.
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby accepts his appointment as the initial Representative.
(c) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative shall have no obligation constitute a notice or communication to or by, or a decision, action, failure to act on behalf within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Stockholders and shall be final, binding and conclusive upon each such Stockholder; and Buyer, each Buyer Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Stockholder. Buyer, each Buyer Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. Representative.
(d) The Representative agrees shall not be liable to any Stockholder for any act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative done or omitted under this Agreement, the Escrow Agreement, any other Ancillary Agreement or certificate or instrument contemplated hereunder while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Stockholder, severally and not jointly, in accordance with his Pro Rata Basis, shall indemnify the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderhold it harmless against any loss, and all defenses which may be available to any Company Securityholder to contest, negate liability or disaffirm expense incurred without gross negligence or bad faith on the action part of the Representative taken and arising out of or in good faith under this Agreement, connection with the Escrow Agreement acceptance or the Representative Engagement Agreement are waived.
(b) The power administration of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate duties under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Ancillary Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matterscertificate or instrument contemplated hereunder. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to To the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from that any distributions of the Escrow Fund Amount are being made to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable Stockholders pursuant to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct terms of the RepresentativeEscrow Agreement, the Representative will reimburse may, upon written notice to Buyer and the Company Securityholders Stockholders, receive reimbursement from the amount Stockholders directly out of any such indemnified Representative Loss received by the Representative distributions that are being made to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. FurthermoreStockholders for any and all expenses, the Representative shall not be required to take any action unless the Representative has been provided with fundscharges and liabilities, security or indemnities whichincluding attorneys’ fees, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be reasonably incurred by the Representative in performing such actions. Notwithstanding anything in the performance or discharge of his rights and obligations under this Agreement to the contraryAgreement; provided, any restrictions or limitations on liability or indemnification obligations ofhowever, or provisions limiting the recourse against non-parties, otherwise applicable to that neither Buyer nor the Company Securityholders set forth elsewhere in this Agreement are not intended shall have any liability with respect to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementsuch items.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if Stockholders hereby agree that:
(i) remedies available at Law for any breach of the Representative resigns or otherwise is unable provisions of this Section 1.5 are inadequate; therefore, the Buyer shall be entitled to perform its obligations as such, temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.5; and
(ii) no successor Representative is appointed the provisions of this Section 1.5 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of the Buyer, the Representative, and each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Persontestamentary disposition, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities Laws of descent and rights to indemnification shall survive the resignation distribution or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementotherwise.
(f) The Stockholders and Buyer will have no liability to acknowledge and agree that the Company Securityholders or otherwise arising out Representative can be removed and/or replaced upon the affirmative written consent of Stockholders holding a majority of the acts or omissions aggregate Pro Rata Basis percentages set forth on Exhibit A hereto, upon not less than ten (10) days’ prior written notice to Buyer. Upon the due removal and/or replacement of Representative or any disputes with the Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer and the newly appointed Representative shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior provide prompt written notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under Escrow Agent concerning such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)replacement.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement transactions contemplated hereby, including (i) the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Buyer pursuant to Article X hereof and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or (ii) entering into the Escrow Agreement, the Shareholders, by virtue of the approval their adoption of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation approval of the Acquisition or participating in Merger, agree to the Acquisition appointment of the Representative. The Representative is hereby authorized to take any and receiving all action as is contemplated to be taken by the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to Shareholders by the terms of this Agreement and the Escrow Agreement. All decisions and actions by the Representative shall be binding upon all of the Shareholders and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. By their adoption of this Agreement and the approval of the Merger, the Shareholders further agree that: (a) Buyer shall be able to rely exclusively on the instructions and decisions of the Representative as to the settlement of claims for indemnification by Buyer pursuant to Article X hereof, or any other actions taken by the Representative hereunder, and no party hereunder shall have any cause of action against Buyer in reliance upon the absolute discretion instructions or decisions of the Representative; (b) all actions, decisions and instructions of the Representative shall be final, conclusive and binding upon the Shareholders; A-10
(Bc) represent such Company Securityholder the provisions of this Section 2.11 are independent and such Company Securityholder’s successors severable, are irrevocable and coupled with respect to all matters arising under an interest, and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (Dd) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval provisions of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement Section 2.11 shall be binding upon such Company Securityholder the executors, heirs, legal representatives and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this AgreementShareholder, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything references in this Agreement to a Shareholder shall mean and include the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable successors to the Company Securityholders set forth elsewhere in this Agreement are not intended Shareholders' rights hereunder, whether pursuant to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closingtestamentary disposition, the resignation laws of descent and distribution or removal of the Representative or the termination of this Agreementotherwise.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder Stockholders hereby appoints the Representative Green as its his exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesto act on his behalf with respect to any and all matters, by virtue claims, controversies, or disputes arising out of the approval terms of this Agreement and (the Acquisition (and no act of such Company Securityholder"Representative"), . Each Stockholder further agrees that all actions taken by -------------- upon the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action vote of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder Stockholders holding a majority of the whole or any fraction stock of his, her or its interest in the Escrow Amount. Without limiting Company immediately preceding the foregoing, Closing (the "Stockholder Approval") the -------------------- Representative shall have the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, or in the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf best interests of the Company SecurityholdersStockholders, as fully as if the Stockholders were acting on their own behalf, including defending all indemnity claims pursuant to Article 9without limitation, consenting to, compromising or and settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions claims, disputes or controversies arising hereunder (including without limitation the calculation and payment of the Representative specified in or contemplated by this Agreement or Merger Consideration), conducting all negotiations with and otherwise dealing with CCC and the Escrow Agreement Surviving Corporation and engaging counsel counsel, accountants and accountants other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement CCC and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants Surviving Corporation shall have the Representative full power and authority right to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to rely on any amendment hereof actions taken or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it omitted to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission taken by the Representative in connection with as being the Representative’s services pursuant to this Agreementact or omission of the Stockholders, without the need for any inquiry, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from such actions or omissions shall be binding upon the Representative’s willful misconduct or gross negligenceStockholders. By virtue The Stockholders shall have the right to change the identity of the approval of this Agreement Representative upon Stockholder Approval and shall deliver to CCC and the Acquisition and no other act Surviving Corporation prompt written notice of any Company Securityholdersuch change of identity, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally which upon receipt by CCC and not jointly, by each Company Securityholder the Surviving Corporation will indemnify, defend and effect said change. The Stockholders agree to hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) free and harmless from and indemnify the Representative against any and all lossesloss, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of damage or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses liability which he may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than sustain as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate fundsany action taken in good faith hereunder, will not use these funds for its operating expenses or including, without limitation, any other corporate purposes legal fees and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingexpenses.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Merger, including (i) the determination of any adjustment pursuant to Section 2.16 and efficiently represent (ii) the interests dispute, defense and/or settlement of any claims for which the Company Securityholders with respect Indemnitors may be required to all matters arising under indemnify Parent and/or the Surviving Corporation pursuant to this Agreement or the Escrow Agreement, the Principal Shareholders, by virtue their execution of this Agreement, and the other Applicable Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, hereby designate and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints appoint the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful their representative, attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreementagent. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The This power of attorney and all authority hereby conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company SecurityholderApplicable Holder, by operation of lawLaw, whether by such Company SecurityholderApplicable Holder’s death or disability death, disability, protective supervision or any other event event.
(b) The Principal Shareholders, by their execution of this Agreement, and the other Applicable Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, hereby authorize the Representative: (i) to make all decisions relating to the determination of any adjustments pursuant to Section 2.16, (ii) shall survive to take all action necessary in connection with the delivery waiver of an assignment by any Company Securityholder condition to the obligations of the whole Company and the Applicable Holders to consummate the transactions contemplated hereby, or the dispute, defense and/or settlement of any fraction of hisclaims for which the Applicable Holders may be required to indemnify Parent and/or the Surviving Corporation pursuant to Article 9, her (iii) to give and receive all notices permitted or its interest in required to be given under this Agreement, (iv) to execute and deliver the Escrow Amount. Without limiting the foregoing, the power of attorney shall Agreement and (v) to take any and all additional action as is contemplated to be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, taken by virtue or on behalf of the approval Applicable Holders by the terms of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The If the Representative agrees becomes unable to be bound perform his responsibilities hereunder or resigns from such position, the Applicable Holders (acting by all obligations the vote of the Applicable Holders who immediately before the Effective Time held the right to receive at least a majority of the Common Equivalent Merger Consideration) shall select another representative to fill the vacancy of the Representative under initially chosen by the Applicable Holders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement or and the Escrow Agreement documents delivered pursuant to which it is a party this Agreement.
(d) All decisions and shall take any and all actions which of the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company SecurityholdersApplicable Holders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Applicable Holders, and no Applicable Holder shall have the right to object, dissent, protest or otherwise contest the same. A decision, act, consent, instruction or action of the Representative, including defending all indemnity any agreement between the Representative and Parent relating to the determination of the Final Closing Net Working Capital, the Merger Consideration or the dispute, defense or settlement of any claims for which the Applicable Holders may be required to indemnify Parent and/or the Surviving Corporation pursuant to Article 9, consenting toshall constitute a decision, compromising act, consent, instruction or settling action of all Applicable Holders and shall be binding and conclusive upon each of such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer Applicable Holders and the Company Parties, the Surviving Corporation and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Applicable Holder. Parent, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Applicable Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) The Representative will receive no compensation for services as the Representative. By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Applicable Holder, agrees that the Applicable Holders will pay from the Representative Expense Fund all (i) professional fees and expenses of any attorney, accountant or other advisors or expert retained by the Representative and other reasonable out-of-pocket expenses incurred by the Representative in connection with the performance of the Representative’s duties under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including actually incurred or suffered by the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) Representative in connection with this Agreement or the Escrow Agreement as the Representative (collectively, the “Representative LossesExpenses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss Expense is suffered or incurred; provided, that in the event that if any such Representative Loss Expense is finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders Applicable Holders the amount of such indemnified Representative Loss received by the Representative Expense to the extent attributable to such fraud, gross negligence or willful misconduct. Such Representative Losses Expenses may only be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, Fund or from any distributions of the Escrow Fund to the Company Shareholders as provided below or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductApplicable Holders directly. In no event will the Representative be required to advance its his own funds on behalf of the Company Securityholders Applicable Holders or otherwise. FurthermoreFollowing the resolution of all pending claims related thereto (and, for the avoidance of doubt, no earlier), the Representative shall not be required have the right to take any action unless recover Representative Expenses in excess of the Representative has been provided Expense Fund from the Escrow Fund before any distribution to the Applicable Holders. By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Applicable Holder, agrees that the Applicable Holders will on an individual and several basis (and not jointly as to or with fundsany other Applicable Holder) indemnify, security or indemnities whichdefend, hold harmless and reimburse, on a Proceeds Pro Rata Basis, the Representative for Representative Expenses, in its determination, each case as such Representative Expenses are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this sectionincurred. The foregoing indemnities indemnity will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement, and the Representative and the Applicable Holders acknowledge and agree that the provisions of this Section 2.18(e) shall impose no obligations on the Company, the Surviving Corporation, Parent or any of their respective Affiliates.
(ef) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform By his, her or its obligations under execution of this Agreement orAgreement, in the case of a Representative that is not a natural Personeach Principal Shareholder, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority and by their approval of the Company Ordinary Shares (on an as converted basis) as Merger and adoption of immediately prior this Agreement, and/or their acceptance of any consideration pursuant to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrarythis Agreement, if each other Applicable Holder, agrees that:
(i) Parent shall be able to rely conclusively on the instructions and decisions of the Representative resigns as to the determination of any adjustment pursuant to Section 2.16, the settlement of any claims for indemnification by Parent and/or the Surviving Corporation pursuant to Article 9 or otherwise is unable any other actions required or permitted to perform its obligations as suchbe taken by the Representative hereunder, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon the instructions or decisions of the Representative;
(ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without Applicable Holder shall have any further cause of action of or consent by any Person, the Advisory Group, shall be against the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities for, and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will shall have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings Applicable Holder in connection with, and notices to and fromany action taken or omitted, the Representative to satisfy any obligations it might have under this Agreement decision made or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed instruction given by the Representative (under this Agreement, except for liability directly resulting from fraud, gross negligence or willful misconduct on behalf the part of the Company Securityholders).Representative;
(hiii) The Representative Expense Fund will be used for the purposes of paying directlyeach such Applicable Holder will, on an individual and several basis based on his, her or reimbursing its Proceeds Pro Rata Basis (and not jointly as to or with any other Applicable Holder) indemnify, defend and hold harmless the Representative for in accordance with Section 2.18(e);
(iv) the provisions of this Section 2.18 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any third party expenses incurred pursuant to this Agreement and the Related Agreements, rights or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in remedies that any similar capacity Applicable Holder may have in connection with the Representative Expense Amounttransactions contemplated by this Agreement;
(v) remedies available at law for any breach of the provisions of this Section 2.18 may be inadequate; therefore, Parent and the Surviving Corporation shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages if either Parent and/or the Surviving Corporation brings an action to enforce the provisions of this Section 2.18; and
(vi) the provisions of this Section 2.18 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Applicable Holder, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on references in this Agreement to an Applicable Holder shall mean and include the Representative Expense Fund and irrevocably transfer and assign successors to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate fundsApplicable Holder’s rights hereunder, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available whether pursuant to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiestestamentary disposition, the Representative will deliver any remaining Laws of the Representative Expense Fund to the Paying Agent for further descent and distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingor otherwise.
Appears in 1 contract
Sources: Merger Agreement (ZAGG Inc)
Representative. (a) In order to efficiently administer the obligations specified transactions contemplated hereby, including any actions that the Representative may, in this Agreement its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.6 and efficiently represent the interests of 1.7, the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementStockholders, by virtue of the approval their adoption of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation approval of the Acquisition Merger, by their acceptance of any Merger Consideration and/or the completion and execution of the Letters of Transmittal or participating in other agreement or documentation that may be required with respect to the Acquisition and receiving the benefits thereofCompany Stockholders, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints hereby designate the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s their representative, true and lawful attorney-in-fact effective upon the Closingand exclusive agent for all purposes set forth herein, with full power and authority in such Company Securityholder’s his, her or its name and on such Company Securityholder’s his, her or its behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, and hereby authorize the Representative to:
(Ci) receive take all notices actions required or permitted by, and service of process; and (D) exercise all rights granted to, the Representative in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement;
(ii) review the Closing Statement, deliver any Objection Notice with respect thereto, and discuss, negotiate, resolve and fully and finally settle on behalf of the Company Stockholders, any Objection Items or other disputes with respect to the determination of Closing Indebtedness, Unpaid Company Transaction Expenses, Closing Net Working Capital and the final determination of any adjustment to the Total Merger Consideration pursuant to Section 1.6;
(iii) take all action necessary in connection with the waiver of any condition to the obligations of the Company or the Company Stockholders to consummate the transactions contemplated hereby;
(iv) discuss, negotiate, resolve and fully and finally settle on behalf of the Company Stockholders any claims for indemnification by any Indemnified Party pursuant to this Agreement;
(v) give and receive notices and communications to or from Buyer (on behalf of itself or any other Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby;
(vi) receive and accept service of legal process in connection with any claim or other proceeding against the Company Stockholders or the Company arising under this Agreement or the Escrow Agreement;
(vii) negotiate, undertake, compromise, defend, resolve and settle any suit, proceeding or dispute under this Agreement or the Escrow Agreement on behalf of the Company Stockholders; execute and deliver all agreements, certificates and documents required or deemed appropriate by the Representative, in his/her/its capacity as the Representative, in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(viii) execute and deliver all agreements, certificates and documents required or deemed appropriate by the Representative in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(ix) engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated by this Agreement or the Escrow Agreement;
(x) to the fullest extent permitted by Law, agree to and approve of modifications or amendments to this Agreement or to the Escrow Agreement, and executing and delivering agreements of such modification or amendment; and
(xi) to the fullest extent permitted by Law, take all other actions (including defending or enforcing any actions, and to make, deliver and sign any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement) necessary or appropriate in the reasonable judgment of the Representative in connection with any transaction contemplated hereunder or for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any Circumstance. Notwithstanding the foregoing, the Representative (i) shall have no obligation to act on behalf of the Company SecurityholdersStockholders, except as expressly provided herein, in the Escrow Agreement, Paying Agent Agreement and in the Representative Engagement Agreement, Agreement and for purposes of clarity, other than as set forth herein, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as Schedule and (ii) may not amend, alter, modify, waive or otherwise change the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue limitations on the indemnification obligations of the approval of this Agreement and LDS Church as set forth in Section 8.6 without the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action written consent of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedLDS Church.
(b) Fortis Advisors LLC hereby accepts its appointment as the initial Representative.
(c) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder and such Company Stockholder’s successors; and Buyer, each Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. To the fullest extent permitted by Law, the Buyer, each Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative.
(d) The power Joining Company Stockholders hereby agree that:
(i) all actions, decisions and instructions of attorney the Representative shall be conclusive and all authority conferred under binding upon each of the Joining Company Stockholders, and, to the fullest extent permitted by Law, no Joining Company Stockholders shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative in connection with this Agreement, the Representative Engagement Agreement or the agreements ancillary hereto, except for fraud or willful misconduct on the part of the Representative;
(ii) to the fullest extent permitted by Law, the provisions of this Section 2.5 1.8 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are independent and severable, are irrevocable and coupled with an interest, and shall be irrevocable and shall not be terminated enforceable notwithstanding any rights or remedies that any Joining Company Stockholder may have in connection with the transactions contemplated by any act of any Company Securityholderthis Agreement, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the death, incompetence, bankruptcy or liquidation of any Joining Company Stockholder and shall be binding on any successor thereto, and (iii) shall survive the delivery of an assignment by any Joining Company Securityholder Stockholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.Fund;
(ciii) The Representative agrees to be bound by all obligations no Joining Company Stockholder shall have any cause of action against the Representative under this Agreement for any action taken or the Escrow Agreement to which it is a party and shall take not taken, any and all actions which decision made or any instruction given or not given by the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement agreements and the Escrow Agreement with respect to all matters arising hereunder instruments contemplated hereby and thereby, except for causes of action for fraud or thereunder, taking any and all other actions willful breach of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with by the foregoing matters. Without limiting Representative or the generality Representative’s gross negligence or willful misconduct;
(iv) remedies available at Law for any breach of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement Section 1.8 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the Escrow Agreement and necessity of proving damages if the Buyer brings an action to consent to any amendment hereof or thereof on behalf enforce the provisions of such Company Securityholder and its successors. The this Section 1.8;
(v) the Representative shall be entitled to: (i) reasonably rely upon the Closing Payment SpreadsheetSchedule, (ii) rely upon any signature reasonably believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Joining Company Securityholder Stockholder; and
(vi) the provisions of this Section 1.8 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of the Buyer, the Representative, and each Joining Company Stockholder, and any references in this Agreement to a Joining Company Stockholder shall mean and include the successors to the Joining Company Stockholder’s rights hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or other partyotherwise.
(de) The Joining Company Stockholder and Buyer acknowledge and agree that the Representative can resign upon thirty (30) days’ written notice to the Advisory Group and may be removed and/or replaced at any time upon the affirmative written consent of Joining Company Stockholders holding a majority of the aggregate Pro Rata Percentage of all Joining Company Stockholders. Upon the due removal and/or replacement of the Representative, Buyer and the newly appointed Representative shall provide prompt written notice to the Escrow Agent concerning such replacement.
(f) At the Closing, an amount in cash equal to $350,000 (the “Representative Reserve Fund”) shall be withheld from the Total Merger Consideration payable to, and therefore shall not be paid to, the Company Stockholders at the Closing (each such withholding to be made on a Pro Rata Percentage with respect to each Company Stockholder), but instead shall be delivered to the Representative to be held by the Representative in a dedicated account for the payment of any Representative Losses or other expenses incurred by the Representative in performing the duties assigned to the Representative pursuant to this Agreement, the Escrow Agreement and the Representative Engagement Agreement. The Representative is not providing any investment supervision, recommendations or advice. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Reserve Fund, and has no tax reporting or income distribution obligations. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Representative Reserve Fund shall be used by the Representative solely to pay the reasonable out-of-pocket costs or expenses actually incurred by or reasonably expected to be incurred by the Representative in connection with the acceptance, performance and administration of its duties as the Representative pursuant to this Agreement. Any remaining balance in the Representative Reserve Fund shall be released by the Representative to the Company Stockholders (or to the Paying Agent for further distribution to the Company Stockholders) at such time as the Representative determines that the Representative Reserve Fund is no longer necessary or desirable, and each Company Stockholder shall be entitled to an amount equal to such Company Stockholder’s Pro Rata Percentage of such amount so released. Prior to any such release of the Representative Reserve Fund, the Representative shall deliver to Buyer an updated Closing Payment Schedule setting forth the portion of the Representative Reserve Fund payable to each Company Stockholder.
(g) Certain Company Securityholders Stockholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company SecurityholdersStockholders, including their individual representatives, collectively hereinafter referred to as collectively, the “Advisory Group”). Neither As between the Company Stockholders and the Representative, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur be liable for any liability to the Company Securityholders of any kind with respect to any action act done or omission by the Representative omitted in connection with the Representative’s services pursuant to this Agreement, and any the Escrow Agreement, the Representative Engagement Agreement or the agreements ancillary hereto while acted acting in good faith, except for liability directly resulting from and any act done or omitted to be done pursuant to the Representative’s willful misconduct or gross negligenceadvice of counsel shall be conclusive evidence of such good faith. By virtue of the approval of this Agreement and the Acquisition and no other act of any The Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will Stockholders shall indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs costs, judgments and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipmentshipment and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Representative Engagement Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence fraud or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders Stockholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence fraud or willful misconduct. Such If not paid directly to the Representative by the Company Stockholders, any such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Reserve Fund; provided, (ii) secondthat while this section allows the Representative to be paid from the aforementioned sources of funds, from any distributions of the Escrow Fund to this does not relieve the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable Stockholders from their obligation to the Company Securityholders, and (iii) directly from the Company Securityholders, as promptly pay such Representative Losses as they are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not nor does it prevent the Representative Group from seeking any remedies available to them it at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductotherwise. In no event will the Representative be required to advance its own funds or otherwise incur any financial liability on behalf of the Company Securityholders Stockholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities (including the Representative Reserve Fund), which, in its reasonable determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to of the Company Securityholders Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities and immunities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and or the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (LogMeIn, Inc.)
Representative. (a) In order Each Seller hereby authorizes, directs and appoints Restaurant Holdings to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its sole and exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful agent, attorney-in-fact effective upon and representative (the Closing, with full power “Representative”) and authority in such Company Securityholder’s name authorizes and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including directs the Representative to (Aa) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary (including, without limitation, executing and delivering any documents (including any amendment or appropriate under modification to this Agreement), the Escrow Agreement, or the Representative Engagement Agreement (including entering into incurring any amendment of same) for costs and expenses on behalf of the Company Securityholders, including defending such Seller and making any and all indemnity claims pursuant to Article 9, consenting to, compromising determinations) which may be required or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under permitted by this Agreement and the Escrow Agreement to be taken by such Seller; (b) make decisions on behalf of such Seller with respect to all the transactions and other matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with other Transaction Documents, including regarding adjustments to the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement Estimated Aggregate Purchase Price and the Acquisition (management, negotiation, settlement and no act compromise of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof indemnification claims or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder demand litigation or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind arbitration with respect to any action third-party suits or omission claims by the Purchaser for indemnification; (c) exercise such other rights, power and authority, as are authorized, delegated and granted to the Representative in connection with the Representative’s services pursuant to this Agreement; and (d) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any agreements ancillary hereto while acted decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each such Seller as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision or determination in good faithsuch Seller’s capacity. Each Seller agrees that the Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby, except for liability directly such actions taken or omitted to be taken resulting from the Representative’s willful misconduct or gross negligencemisconduct. By virtue of Purchaser shall be entitled to deal exclusively with the approval of Representative on all matters relating to this Agreement Agreement, and the Acquisition and no other act shall be entitled to rely conclusively (without further evidence of any Company Securityholder, each Company Securityholder (based kind whatsoever) on such Company Securityholder’s Pro Rata Share), severally and not jointly, any document executed by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated purported to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds executed on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified Seller by the Representative, in each case, and on any other action taken or purported to the extent reasonably related to be taken on behalf of any such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed Seller by the Representative (on behalf of the Company Securityholders)as fully binding upon each such Seller.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer Effective upon and by virtue of the obligations specified in Shareholder Approval, and without any further act of any of the Shareholders, Representative shall be hereby appointed as the representative of the Shareholders and as the attorney-in-fact and agent for and on behalf of each Shareholder for purposes of this Agreement and efficiently represent the interests Escrow Agreements. Representative will take such actions under this Agreement and the Escrow Agreements and otherwise on behalf of such Shareholders as Representative may deem necessary or appropriate in its discretion in connection with or to consummate the transactions contemplated hereby or thereby, including (i) executing and delivering this Agreement, the Escrow Agreements and any other ancillary documents and negotiating and executing amendments, modifications, waivers or changes thereto (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Shareholder as compared to other Shareholders shall require the prior written consent of such Shareholder), (ii) taking all actions and making all filings on behalf of such Shareholders with any Governmental Body or other Person necessary to effect the consummation of the Company Securityholders transactions contemplated by this Agreement, (iii) agreeing to, negotiating, entering into settlements and compromises of, complying with Orders with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreements on behalf of the Shareholders, (iv) using the Representative Expense Amount to satisfy costs, expenses and/or liabilities of Representative in connection with matters related to this Agreement and/or Escrow Agreements as Representative, and (v) taking all other actions that are either necessary or appropriate in the judgment of Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreements. Representative hereby accepts such appointment. Representative shall use commercially reasonable efforts based on contact information available to Representative to keep the Shareholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Shareholders. Each Shareholder shall promptly provide written notice to Representative of any change of address of such Shareholder.
(b) A decision, act, consent or instruction of Representative hereunder shall constitute a decision, act, consent or instruction of all matters Shareholders and shall be final, binding and conclusive upon each of such Shareholders, and Parent may rely upon any such decision, act, consent or instruction of Representative as being the decision, act, consent or instruction of each and every such Shareholder. Parent and the Escrow Agent shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Representative.
(c) Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Representative to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the deliberate fraud of Representative. In all questions arising under this Agreement or the Escrow AgreementAgreements, by virtue Representative may rely on the advice of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)outside counsel, and Representative will not be liable to any Shareholder for anything done, omitted or suffered in good faith by Representative based on such advice.
(d) If and to the consummation of extent that the Acquisition Representative Expense Amount is not sufficient to pay, or participating in reimburse Representative for, the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable expenses incurred in connection with the Acquisitionperformance of duties hereunder by the Representatives, the Shareholders shall severally (each Company Securityholder appoints based on its proportionate share of any consideration paid or payable pursuant to this Agreement) but not jointly indemnify Representative and hold Representative harmless against any such excess costs or expense. The Shareholders shall severally (each based on its proportionate share of any consideration paid or payable pursuant to this Agreement) but not jointly indemnify Representative and hold Representative harmless against any and all loss, liability or expense incurred, other than as a result of deliberate fraud on the part of Representative, that arises from or relates to the acceptance or administration of Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel or other advisors reasonably retained by Representative. After release of all Post-Closing Indemnity Escrow Funds and completion of the Representatives duties hereunder, if and to the extent any portion of the Representative Expense Amount is unspent, Representative will take reasonable steps to distribute any such remaining portion as its exclusive agent for contemplated by Sections 1.06(a) and 1.06(b).
(e) At any time Shareholders representing at least seventy percent (70%) in interest of the Shareholders may, by written consent, appoint a new representative as Representative. Notice together with a copy of the written consent appointing such Company Securityholder new representative and as bearing the signatures of Shareholders of at least seventy percent (70%) in interest of the Shareholders must be delivered to Parent and, if applicable, the Escrow Agent not less than ten (10) days prior to such Company Securityholder’s true and lawful attorney-in-fact appointment. Such appointment will be effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to later of the terms of this Agreement and the Escrow Agreement date indicated in the absolute discretion of consent or the Representativedate such consent is received by Parent and, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreementif applicable, the Escrow Agreement or Agent. For the Representative Engagement Agreement. Notwithstanding the foregoingpurposes of this Section 10.01, the Representative shall have no obligation to act on behalf "seventy percent (70%) in interest of the Company Securityholders, except as expressly provided herein, Shareholders" shall mean Shareholders representing in the Escrow Agreement and aggregate at least 70% of the percentage Shareholders' interests in the any consideration paid or payable pursuant to this Agreement.
(f) In the event that Representative Engagement Agreementbecomes unable or unwilling to continue in his or its capacity as Representative, and for purposes of clarityor if Representative resigns as a Representative, there are no obligations Shareholders representing at least seventy percent (70%) in interest of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesShareholders may, by virtue written consent, appoint a new representative as Representative. Notice and a copy of the approval written consent appointing such new representative and bearing the signatures of this Agreement and the Acquisition Shareholders of at least seventy percent (and no act 70%) in interest of such Company Securityholder)the Shareholders must be delivered to Parent and, that all actions taken by the Representative under this Agreementif applicable, the Escrow Agreement, Agent. Such appointment will be effective upon the later of the date indicated in the consent or the Representative Engagement Agreement shall be binding upon date such Company Securityholder and such Company Securityholder’s successors as consent is received by Parent and, if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreementapplicable, the Escrow Agreement or the Representative Engagement Agreement are waivedAgent.
(bg) The power grant of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: provided for herein (i) is coupled with an interest and shall be irrevocable and shall not be terminated by any act survive the death, incompetency, bankruptcy or liquidation of any Company SecurityholderShareholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder consummation of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementMerger.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order addition to efficiently administer the obligations specified other rights and authority granted to the Representative elsewhere in this Agreement and efficiently represent the interests Agreement, each of the Company Securityholders with respect Surge Equityholders hereby to all matters arising under this Agreement or the Escrow Agreementfullest extent permitted by applicable Law, by virtue of the approval of this Agreement irrevocably constitutes and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful proxy, attorney-in-fact effective upon the Closing, with full power agent and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including representative to act (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representativeprovided, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreementhowever, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, that the Representative shall have no obligation to the Surge Equityholders to act other than as expressly provided herein), from and after the date hereof and to do any and all lawful things and execute and deliver any and all documents, for, in the name of and on behalf of such Surge Equityholder, and in such Surge Equityholder’s name, place and stead, that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, including: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof, as contemplated by this Agreement; (iii) receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) giving or agreeing to, on behalf of all or any of the Surge Equityholders, any and all consents, waivers, amendments or modifications deemed by the Representative, in his sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) amending this Agreement or any of the instruments to be delivered to Motor or ParentCo pursuant to this Agreement; (vii) (A) disputing or refraining from disputing, on behalf of each Surge Equityholder relative to any Surge Merger Consideration to be received by such Surge Equityholder under this Agreement or any agreements contemplated hereby, any claim made by Motor or ParentCo under this Agreement or other agreements contemplated hereby, (B) negotiating and compromising, on behalf of each such Surge Equityholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (C) executing, on behalf of each such Surge Equityholder, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) voting the Surge Equityholders’ shares of ParentCo Common Stock that are held in the Escrow Account at any meeting of ParentCo’s shareholders, provided that the Representative shall, without the prior written consent of ParentCo, vote such shares of ParentCo Common stock in the same proportion as the votes cast by all other shares voting on each particular matter at such meeting of ParentCo’s shareholders, and an irrevocable proxy with respect thereto is hereby granted, and (ix) engaging attorneys, accountants, agents or consultants on behalf of the Company SecurityholdersSurge Equityholders in connection with this Agreement or any other agreement contemplated hereby and paying any fees related thereto. Any such actions taken, except exercises of rights, power or authority, and any decision or determination made by the Representative consistent herewith, shall to the fullest extent permitted by applicable Law, be absolutely and irrevocably binding on each Surge Equityholder as expressly provided hereinif such Surge Equityholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Surge Equityholder’s individual capacity, and no Surge Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) Notwithstanding Section 4.20(a), in the Escrow event that the Representative is of the opinion that he requires further authorization or advice from the Surge Equityholders on any matters concerning this Agreement, the Representative shall be entitled to seek such further authorization or advice from the Surge Equityholders prior to acting on their behalf. In such event, each Surge Equityholder shall vote in accordance with the pro rata portion of the Surge Merger Consideration payable or paid to such Surge Unitholders in accordance with this Agreement and in the Representative Engagement Agreementauthorization of Persons entitled to receive at least a majority of the Surge Merger Consideration shall, to the fullest extent permitted by applicable Law, be binding on all of the Surge Equityholders and for purposes shall constitute the authorization of clarity, there are no obligations the Surge Equityholders. The appointment of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and each Surge Equityholder’s attorney-in-fact revokes any power of each Company Securityholder. Each Company Securityholders agrees, by virtue attorney heretofore granted that authorized any other person or persons to represent such Surge Equityholder with regard to the facilitation of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action Transactions. The appointment of the Representative taken is coupled with an interest and shall, to the fullest extent permitted by applicable Law, be irrevocable by each Surge Equityholder in good faith under this Agreement, the Escrow Agreement any manner or the Representative Engagement Agreement are waived.
(b) for any reason. The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) by this Section 4.20 shall be irrevocable survive and shall not be terminated affected by any the death, illness, dissolution, disability, bankruptcy, incapacity or other inability to act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or Surge Equityholder pursuant to any other event and (ii) shall survive applicable Law. ▇▇▇▇ ▇▇▇▇▇▇ hereby accepts his appointment as the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreementinitial Representative.
(c) The Representative agrees may resign from his position as Representative at any time by written notice delivered to be bound by all obligations ParentCo and the Surge Equityholders. If there is a vacancy at any time in the position of the Representative under this Agreement or the Escrow Agreement to which it is for any reason, such vacancy shall be filled by a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified majority vote in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection accordance with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholdermethod set forth in Section 4.20(b), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with All acts of the Representative to provide direction hereunder in his capacity as such shall, to the Representative in connection with its services under this Agreement fullest extent permitted by applicable Law, be deemed to be acts on behalf of the Surge Equityholders and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither not of the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member individually. Other than as a result of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse shall not have any liability for any amount owed to Motor or ParentCo pursuant to this Agreement to the Company Securityholders the amount fullest extent permitted by applicable Law. Other than as a result of such indemnified Representative Loss received willful misconduct by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required liable to take any action unless Surge, Motor, ParentCo or the Representative has been provided with funds, security or indemnities whichMerger Subs, in its determinationhis capacity as the Representative, are sufficient to protect the Representative against the costsfor any liability of a Surge Equityholder or otherwise, expenses and liabilities which or for anything that he may be incurred by the Representative do or refrain from doing in performing such actions. Notwithstanding anything in connection with this Agreement to the contraryfullest extent permitted by applicable Law. To the fullest extent permitted by applicable Law, the Representative shall not be liable to the Surge Equityholders, in his capacity as the Representative, for any restrictions liability of a Surge Equityholder or limitations on liability or indemnification obligations ofotherwise, or provisions limiting for any error of judgment, or any act done or step taken or omitted by him in good faith, or for any mistake in fact or Law, or for anything that he may do or refrain from doing in connection with this Agreement except in the recourse against non-parties, otherwise applicable case of the Representative’s willful misconduct. The Representative may seek the advice of legal counsel in the event of any dispute or question as to the Company Securityholders set forth elsewhere in construction of any of the provisions of this Agreement are not intended to be applicable or his duties hereunder, and he shall, to the indemnities provided fullest extent permitted by applicable Law, incur no liability in his capacity as the Representative to Motor, ParentCo either Merger Sub, Surge or the Surge Equityholders and be fully protected with respect to any action taken, omitted or suffered by him in good faith in accordance with the advice of such counsel. The Parties acknowledge and agree the Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Surge Equityholder, and the Parties acknowledge and agree that the Representative’s obligations under this Section 4.20 are solely as a representative of the Surge Equityholders and that the Representative shall, to the fullest extent permitted by applicable Law, have no personal responsibility or liability for any expenses, costs or other liabilities incurred by him in such capacity and the Surge Unitholders (severally, but not jointly, in accordance with the pro rata portion of the Surge Merger Consideration payable or paid to such Surge Unitholders in accordance with this Agreement), shall indemnify and hold the Representative Group harmless in respect of all such expenses, costs or other liabilities (absent the Representative’s willful misconduct), including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders under this section. The foregoing indemnities will survive Representative (it being understood by the Closing, the resignation or removal of Parties that the Representative or shall be permitted to set off against the termination Representative Expense Fund in respect of this Agreementall such amounts).
(e) The Representative may resign at shall not be entitled to any time by giving thirty (30) days’ notice to Buyer and fee, commission or other compensation for the Company Securityholders; In such eventperformance of his services hereunder, the successor Representative but shall be selected by entitled to the Company Securityholders holding payment from Surge of all his expenses reasonably incurred as the Representative. In connection with the foregoing, at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately or prior to the Closing. If , Surge shall transfer $175,000 (the “Representative is unable Expense Fund”) to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified account controlled by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed used by the Representative solely to pay expenses incurred by him in his capacity as the Representative. Each Surge Equityholder shall pay to the Representative, on demand, such Surge Equityholder’s share (on behalf a pro rata basis, based on the pro rata portion of the Company Securityholders).
(hSurge Merger Consideration paid to each Surge Equityholder in accordance with this Agreement) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing all expenses incurred by the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal excess of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconductFund. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in Upon the event of bankruptcy. As soon as practicable following the completion release of the Representative’s responsibilitiesEscrow Account, the Representative will deliver any shall distribute the remaining unused portion of the Representative Expense Fund Fund, if any, to Surviving Surge, by wire transfer of immediately available funds to the Paying Agent for further distribution to the Company Securityholders account(s) designated in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside writing by the Company Securityholders at the time of ClosingSurviving Surge.
Appears in 1 contract
Sources: Merger Agreement (Misonix Inc)
Representative. Vantage is hereby appointed by the Company (a) In order to efficiently administer the obligations specified in and by execution of this Agreement and efficiently represent hereby accepts such appointment) as the interests representative of the Company Securityholders Recipients (the “Representative”), with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken taking by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, of any and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 actions and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act making of any Company Securityholder, by operation of law, by such Company Securityholder’s death decisions required or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees permitted to be bound taken by all obligations of the Representative under this Agreement or the Escrow Agreement or EBITDA Shares Escrow Agreement. Should the Representative resign or be unable to which it is serve, a new Representative will be selected jointly by a vote of the Recipients who, at Closing, received a majority of the Merger Shares, whose appointment shall be effective upon execution by such successor of a joinder agreement providing for such successor to become a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, to the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the EBITDA Shares Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and as the Acquisition (and no act of Representative, in which case such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret successor shall for all the terms and provisions purposes of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder EBITDA Shares Escrow Agreement be the Representative (and its successors. The the prior acts taken by the succeeded Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf remain valid for purposes of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as and the “Advisory Group”EBITDA Shares Escrow Agreement). Neither If such Recipients are unable to appoint a Person to serve in the capacity of Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member within 15 days of the Advisory Group in such capacity (collectivelydate that the former Representative resigned or became unable to serve, a new Representative shall be selected by majority vote of those Persons on Parent’s board of directors who served on the “Representative Group”) shall incur any liability board of directors of the Company immediately prior to the Company Securityholders of Effective Time. The Representative shall not be liable to Recipients for any kind with respect to any action liability, loss, damage, penalty, fine, cost or omission expense incurred without gross negligence by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted acting in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement faith and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution acceptance or administration of his duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). From and performance after the Effective Time, a decision, act, consent or instruction of this Agreement the Representative shall be final, binding and conclusive and not subject to challenge by any Recipient. Parent and Surviving Corporation are hereby relieved from any liability to any person for any acts done by Representative and any agreements ancillary hereto, acts done by Parent or Surviving Corporation in each case as such Representative Loss is suffered or incurred; provided, that in the event that accordance with any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence decision, act, consent or willful misconduct instruction of the Representative. Parent, Parent and each of their respective Affiliates shall be entitled to rely upon, and shall be fully protected in relying upon, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, power and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal authority of the Representative or the termination of this Agreementwithout independent investigation.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the The Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints hereby agrees that G▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be appointed as the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name for and on such Company Securityholder’s behalf of each Stockholder, and is hereby authorized to take any and all actions and make any and all decisions required or permitted to be taken by him under this Agreement or any Ancillary Agreement to which any Stockholder is a party, including the exercise of the power to (i) resolve any Dispute Notices with respect to the Final Closing Statement or any Earn-Out Statement, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims, (iii) resolve any indemnification claims and (iv) take all actions necessary in the judgment of the Representative for the accomplishment of the other terms, conditions and limitations of this Agreement, the Ancillary Agreements and any transactions contemplated herein and therein. Accordingly, the Representative has the authority and power to act on behalf of each Stockholder with respect to this Agreement or any Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all purposes actions taken by the Representative in connection with this Agreement and any agreements ancillary hereto including Parent shall only be required to (A) acknowledge or act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of upon a written communication signed by the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors . Such agency may be changed with respect to all matters arising under this Agreement and the Escrow AgreementRepresentative by the majority of the Stockholders represented thereby; provided, (C) receive all notices and service of process; and (D) in general however, that the Representative may not be removed unless any such majority agrees to do all things such removal and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreementidentity of a substituted agent reasonably acceptable to Parent. Notwithstanding the foregoing, the Representative may resign at any time by providing written notice of his intent to resign to each Stockholder, which resignation shall be effective upon the earlier of (i) thirty (30) calendar days following delivery of such written notice or (ii) the appointment of a successor representative, reasonably acceptable to Parent, by the relevant majority. No bond shall be required of the Representative and the Representative shall not receive any compensation for its services. The Representative shall not be liable to the Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, even if such act or omission constitutes negligence on the part of the Representative. The Representative shall only have the duties expressly stated in this Agreement and shall have no obligation to act on behalf of the Company Securityholdersother duty, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit express or the Disclosure Scheduleimplied. The Representative agrees to act as may engage attorneys, accountants and other professionals and experts and pay for such services by seeking reimbursement from the representativeStockholders. The Representative may in good faith rely conclusively upon information, agent reports, statements and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesopinions prepared or presented by such professionals, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions any action taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement based on such reliance shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available deemed conclusively to any Company Securityholder to contest, negate or disaffirm the action of the Representative have been taken in good faith under this Agreement, and in the Escrow Agreement or exercise of reasonable judgment. The Stockholders shall jointly and severally indemnify the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to hold the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by harmless against any act of any Company Securityholderloss, by operation of law, by such Company Securityholder’s death liability or disability or any other event and (ii) shall survive expense incurred on the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations part of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which (so long as the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified was acting in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants good faith in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement therewith) and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion administration of the Representative’s responsibilitiesduties hereunder, including the Representative will deliver reasonable fees and expenses of any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside legal counsel retained by the Company Securityholders at the time of ClosingRepresentative.
Appears in 1 contract
Sources: Merger Agreement (JetPay Corp)
Representative. (a) In order to efficiently administer By virtue of the obligations specified in approval and adoption of this Agreement by the Requisite Vote of the Company Stockholders, and efficiently represent without any further action of any of the interests Company Stockholders or the Company, each of the Company Securityholders shall be deemed to have agreed to appoint NanoDimension Management Limited as its lawful and exclusive representative, agent, proxy and attorney-in-fact, with full power of substitution (the “Representative”), for and on behalf of the Indemnifying Parties to give and receive all notices and communications, to authorize payment to any Indemnified Party from the Escrow Accounts in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to all matters arising under such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claim by or against any Indemnified Party relating to this Agreement or the Escrow AgreementAgreement or the transactions contemplated hereby, by virtue and to take all other actions that are either (i) necessary or appropriate in the judgment of the approval of this Agreement and Representative for the Acquisition (and no act of such Company Securityholder), and the consummation accomplishment of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative foregoing as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to required under the terms of this Agreement and or the Escrow Agreement in the absolute discretion of the Representative, or (Bii) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated be taken by or deemed advisable on behalf of, or refrain from doing any further act or deed on behalf of, the Company Stockholders in connection with this Agreement, the Escrow Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency may be changed by the Representative Engagement AgreementIndemnifying Parties representing a majority of the Pro Rata Portion from time to time. Notwithstanding No bond shall be required of the foregoingRepresentative, and the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and not receive any compensation for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedits services.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by liable for any act done or omitted hereunder as Representative while acting in good faith and in the exercise of any Company Securityholderreasonable judgment, by operation of law, by unless such Company Securityholder’s death act or disability omission constitutes gross negligence or any other event and (ii) shall survive willful misconduct on the delivery of an assignment by any Company Securityholder part of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsRepresentative. The Representative shall be entitled to: (i) rely upon only have the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative duties expressly stated in connection with its services under this Agreement and the Escrow Agreement (shall have no other duty, express or implied. The Representative may engage attorneys, accountants and other professionals and experts. The Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such Company Securityholdersprofessionals, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission taken by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally reliance shall be deemed conclusively to have been taken in good faith and not jointly, by each Company Securityholder will indemnify, defend in the exercise of reasonable judgment. The Indemnifying Parties shall indemnify the Representative and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and harmless against any loss, liability or expense incurred 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other advisors retained by the Representative will reimburse (“Representative Expenses”). The Representative shall have the Company Securityholders right to recover Representative Expenses (i) from the Escrow Accounts from time to time, by delivering a certificate to the Escrow Agent setting forth the Representative Expenses actually incurred and requesting that the Escrow Agent pay the amount of such indemnified Representative Loss received by the Representative Expenses to the extent attributable to such gross negligence Representative, or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund other funds that become payable to the Company Shareholders or other post-closing payment Securityholders under this Agreement at such time as such amounts would otherwise be distributable distributed to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, while the Representative will reimburse may be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders the amount of from their obligation to promptly pay such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence Expenses as they are suffered or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actionsincurred. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, parties otherwise applicable to to, the Company Securityholders or Indemnifying Parties set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this sectionhereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement. A decision, act, consent or instruction of the Representative, including an amendment, extension or waiver of this Agreement pursuant to Sections 8.3 or 8.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon each of the Indemnifying Parties, and no Company Securityholder or Indemnifying Party shall have the right to object, dissent, protest or otherwise contest the same.
(ec) The In the event that the Representative may resign at any time becomes unable or unwilling to continue in its capacity as Representative, or if the Representative resigns as the Representative, it shall appoint a new representative as the Representative. Upon written acceptance by giving thirty (30) days’ notice such successor Representative to Buyer and the Company Securityholders; In serve as a Representative, such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior thereupon succeed to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority and become vested with all of the Company Ordinary Shares (on an as converted basis) as powers and duties and obligations of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the applicable original Representative resigns or otherwise is unable to perform its obligations as suchwithout further act, and (ii) no successor such original Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be discharged from its duties and obligations hereunder and under the Representative for all purposes hereunder until replaced in accordance with Escrow Agreement but shall continue to have the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal benefits of the Representative or any member indemnification set forth in this Section 7.8. Notice and a copy of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under written instrument appointing such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the new Representative (on behalf of the Company Securityholders)which must be counter-signed by it) must be delivered promptly to Parent.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. For purposes of this Escrow Agreement, the UniCAD -------------- Common Stockholders, without any further action on the part of any such UniCAD Common Stockholder, shall be deemed to have consented to and approved: (a) In order to efficiently administer the use of the Escrow Shares as collateral for the indemnification obligations specified under Section 11.2 of the Plan of Reorganization and in the manner set forth in this Agreement and efficiently represent Agreement; (b) the interests appointment of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the representative of the Company Securityholders with respect to all matters arising under this Agreement or UniCAD Common Stockholders (the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder "Representative") and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on such Company Securityholder’s behalf for of each UniCAD Common Stockholder (other than holders of Dissenting Shares), and the taking by the Representative of any and all purposes in connection with actions and the making of any decisions required or permitted to be taken by him or her under this Agreement and any agreements ancillary hereto including Escrow Agreement, including, without limitation, the exercise of the power to (Ai) act according authorize delivery to CCT of Escrow Shares in satisfaction of claims by CCT, (ii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, (iii) negotiate, execute on behalf of the terms UniCAD Common Stockholders, deliver and perform amendments to or modifications of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (Civ) receive resolve any claim made pursuant to Section 11.2 of the Plan of Reorganization, and (v) take all notices and service actions necessary in the judgment of processthe Representative for the accomplishment of the foregoing; and (Dc) in general to do all things of the other terms, conditions and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with limitations of this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoingAccordingly, the Representative shall have no obligation has unlimited authority and power to act on behalf of the Company Securityholders, except as expressly provided herein, in the each UniCAD Common Stockholder with respect to this Escrow Agreement and the disposition, settlement or other handling of all claims, rights or obligations arising under this Escrow Agreement, so long as all UniCAD Common Stockholders are treated in material respects in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedulesame manner. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, UniCAD Common Stockholders will be bound by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under in connection with this Agreement, Escrow Agreement and CCT and the Escrow Agreement, or the Representative Engagement Agreement Agent shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available entitled to rely on any Company Securityholder to contest, negate action or disaffirm the action decision of the Representative taken in good faith under this Agreement, as constituting the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the UniCAD Common Stockholders. In performing such functions, the Representative specified will not be liable to the UniCAD Common Stockholders in the absence of gross negligence or contemplated willful misconduct. All actions and notices by this Agreement or the Representative hereunder shall be signed by the Representative. The Representative may resign from such position, effective upon a new Representative being appointed to act as the Representative by the written consent of UniCAD Common Stockholders who beneficially own at least a majority of the Escrow Agreement Shares. The UniCAD Common Stockholders must elect a new Representative, and engaging counsel and accountants in connection with such written consent must be given, within thirty days from the foregoing matters. Without limiting the generality date of the foregoing, by virtue Representative's notice of intended resignation. UniCAD Common Stockholders who beneficially own at least a majority of the approval of this Agreement Escrow Shares may at any time and the Acquisition (and no from time to time appoint by written consent a new representative to act of such Company Securityholder), each Company Securityholder grants as the Representative full power and authority to interpret all in place of the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsthen-current Representative. The Representative shall not be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon to receive any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf compensation or reimbursement of the applicable Company Securityholder expenses for his or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind her actions taken with respect to any action this Escrow Agreement, either from CCT or omission the Escrow Account, unless and until there are Escrow Shares to be distributed to the UniCAD Common Stockholders on the Escrow Release Date (the "Distributed Shares"). Any out-of- pocket costs and expenses incurred by the Representative in connection with the Representative’s services actions taken pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval terms of this Escrow Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused be paid by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative UniCAD Common Stockholders to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything proportion to their percentage interests in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders Escrow Shares set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.Exhibit A.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cooper & Chyan Technology Inc)
Representative. (a) In order Subject to efficiently administer the obligations specified in terms and conditions of this Agreement and efficiently represent Section 14.16, AQ Seller is designated as the interests representative of the Company Securityholders Sellers (such Person, when acting in such capacity, the “Representative”), to serve, and the Purchaser hereby acknowledges that the Representative shall serve, as the sole representative of the Sellers, from and after the Closing Date, with respect to all the matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating set forth in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow and Paying Agent Agreement in and any other document or agreement contemplated thereby or thereby, such service to be without compensation except for the absolute discretion reimbursement of out of pocket expenses and indemnification specifically provided herein. The Representative has accepted such designation as of the Representativedate hereof; provided, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreementhowever, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, that the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure ScheduleSellers. The Representative agrees will, at all times, be entitled to act rely on any directions received from the Sellers; provided, however, that the Representative shall not be required to follow any such direction and shall be under no obligation to take any action in its capacity as Representative based upon any such direction. Notwithstanding anything to the representativecontrary contained in this Agreement or the Escrow and Paying Agent Agreement, agent the Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller shall otherwise exist against the Representative. The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the Representative or any other Seller or the Purchaser for any purpose of U.S. federal or state law, including federal or state income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to any other Seller.
(b) Effective as of the Closing Date, the Representative shall be the agent, proxy and attorney-in-fact for each Seller for all purposes of each Company Securityholder. Each Company Securityholders agreesthis Agreement, by virtue including full power and authority: (i) to take all actions that the Representative considers necessary or desirable in connection with the defense, pursuit, negotiation or settlement of any determinations relating to the payment or determination of the approval of this Agreement Purchaser Adjustment Amount or the Seller Adjustment Amount and to s▇▇, defend, negotiate, settle and compromise any claims made by or against, and other disputes with, the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under Purchaser or any other Purchaser Indemnified Party pursuant to this Agreement, the Escrow and Paying Agent Agreement or any of the agreements, instruments, documents or transactions contemplated hereby or executed in connection herewith, (ii) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as the Representative shall deem necessary or prudent in connection with the administration of the foregoing, (iii) to provide for all expenses incurred in connection with the administration of the foregoing and to be reimbursed for such expenses from the Representative Expense Holdback Amount, (iv) to disburse, or cause to be disbursed, to the Sellers any funds received (including by the Paying Agent) on behalf of the Sellers under this Agreement, (v) to receive, hold and manage the Representative Expense Holdback Amount to pay amounts pursuant to Section 14.16(f), (vi) to take all other actions and exercise all other rights which the Representative in its sole discretion considers necessary or appropriate in connection with this Agreement or the Escrow and Paying Agent Agreement, including execution and delivery of the Escrow and Paying Agent Agreement, and any amendment or waiver to this Agreement or the Escrow and Paying Agent Agreement, and the other agreements, instruments and documents contemplated hereby or executed in connection herewith. All decisions and acts by the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderall Sellers, and all defenses which may be available no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(c) In the event that any Company Securityholder to contest, negate or disaffirm the action Person authorized hereunder as part of the Representative taken in good faith under this Agreementshall die, become incapacitated, resign or otherwise fail to act on behalf of the Sellers for any reason, the Escrow Agreement or Representative shall include such other Person as shall be acceptable to the continuing representative, and such substituted representative, together with the continuing representative, together shall be deemed to be the Representative Engagement Agreement are waived.
(b) The power for all purposes of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(cd) The Representative agrees is authorized to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and act on behalf of the Company SecurityholdersSellers notwithstanding any dispute or disagreement among the Sellers, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect other parties hereto shall be entitled to all matters arising hereunder or thereunder, taking rely on any and all action taken by the Representative without any liability to, or obligation to inquire of, any Seller even if such party shall be aware of any actual or potential dispute or disagreement among the Sellers. Each of the other actions parties hereto is expressly authorized to rely on the genuineness of the signature of the Representative specified in and, upon receipt of any writing which reasonably appears to have been signed by the Representative, the other parties hereto may act upon the same without any further duty of inquiry as to the genuineness of the writing.
(e) Neither the Representative nor any of its members, partners, managers, officers, agents or other representatives or Affiliates shall incur any liability to any Seller by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated by this Agreement or relating to the Escrow performance of their duties hereunder. Neither the Representative nor any of its members, partners, managers, officers, agents or other representatives or Affiliates shall be liable to any Seller relating to the performance of the Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, except to the extent it is finally determined in a court of competent jurisdiction by clear and engaging counsel convincing evidence that the actions taken or not taken by the Representative constituted gross negligence or willful misconduct. The Representative and accountants its members, managers, officers, agents and other representatives shall be indemnified and held harmless by the Sellers against all Losses paid or incurred in connection with the foregoing matters. Without limiting the generality any action, suit, proceeding or claim to which any of such Persons is made a party by reason of the foregoingfact that it was acting as the Representative pursuant to this Agreement; provided, however, that the Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Representative constituted gross negligence or willful misconduct. For the avoidance of doubt, the indemnification contemplated by this Section 14.16(e) shall not subject to any of the survival or other limitation or exclusive remedy provisions of ARTICLE XI.
(f) Any amount owing to the Representative from any Seller pursuant to this Section 14.16 shall be deductible at the option of the Representative from the next succeeding distribution(s), if any, of the Escrow Amount, as applicable, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof Agent to, or thereof on behalf of for the benefit of, such Company Securityholder and its successorsSeller. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely protected in acting upon any signature notice, statement or certificate believed by it him to be genuine, genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of have been furnished by the applicable Company Securityholder appropriate person and in acting or other partyrefusing to act in good faith or any matter.
(dg) Certain Company Securityholders have entered into an engagement agreement with The Purchaser shall pay the Representative to provide direction Expense Holdback Amount to the Paying Agent pursuant to Section 1.04(c), for the benefit of and further distribution to the Representative. The Representative in connection with its services under this Agreement shall receive, hold and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither manage the Representative nor its membersExpense Holdback Amount, managers, directors, officers, contractors, agents and employees nor which amount shall be available to reimburse the Representative for any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability expenses incurred or anticipated to the Company Securityholders of any kind with respect to any action or omission be incurred by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct exercise of the Representative’s powers and authority hereunder, including the Representative will reimburse the Company Securityholders the amount payment of such indemnified Representative Loss received reasonable fees and expenses of any legal counsel retained by the Representative Representative. Following the Escrow Termination Date and upon final resolution of all proper claims pursuant to ARTICLE XI and Section 13.05(a) or otherwise related to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by Agreement and the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions terms and conditions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Paying Agent Agreement and full reimbursement of all Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent of the Representative Group from seeking any remedies available pursuant to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. FurthermoreSection 14.16(e), the Representative shall distribute or cause to be distributed any remaining portion that has not be required to take any action unless been released from the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement Escrow Account to the contraryPaying Agent, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting for the recourse against non-parties, otherwise applicable benefit of and further distribution to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced each Seller in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)Seller’s Allocation Percentage.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal appointment of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate fundsshall be deemed coupled with an interest and shall be irrevocable, will not use these funds for its operating expenses or and the Purchaser and any other corporate purposes Person may conclusively and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiesabsolutely rely, the Representative will deliver without inquiry, upon any remaining action of the Representative Expense Fund in all matters referred to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingherein.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Without any further act of any of the Company Securityholders with respect to all matters arising under this Agreement Stockholders or the Escrow Agreementother Holders, by virtue the Representative is hereby appointed as the representative of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder Holders and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on such Company Securityholder’s behalf of each Holder for all purposes of this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements and documents executed or delivered in connection with this Agreement and any agreements ancillary hereto including shall take such actions to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions be taken by the Representative under this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements and documents executed or the Representative Engagement delivered in connection with this Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors other actions on behalf of such Holders as if expressly confirmed it may deem necessary or appropriate in connection with or to consummate the Transactions, including (i) executing and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under delivering this Agreement, the Escrow Agreement or Agreement, the Representative Engagement Agreement are waived.
(b) The power of attorney Paying Agent Agreement, the other Transaction Documents and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented, (ii) shall survive taking all actions and making all filings on behalf of such Holders with any Governmental Body or other Person necessary to effect the delivery of an assignment by any Company Securityholder consummation of the whole or Transactions, (iii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate claims under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of Paying Agent Agreement, the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof Transaction Documents on behalf of such Company Securityholder Holders, (iv) satisfying from the Indemnity Escrow Account and Working Capital Escrow Account costs, expenses and/or Liabilities incurred by the Representative in its successorscapacity as the Representative and otherwise in accordance with this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents, and (v) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents. The Representative hereby accepts such appointment. The appointment of the Representative as each Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Holder with regard to this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Holders for any purpose provided for by this Agreement. The Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Representative hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be entitled to: (i) rely final, binding and conclusive upon each such Holder, and Parent, the Payment SpreadsheetSurviving Corporation, (ii) the Escrow Agent and the Paying Agent may rely upon any signature such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each and every such Holder. Parent, the Surviving Corporation, the Escrow Agent and the Paying Agent shall be relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Representative.
(c) The Representative shall incur no liability with respect to any action taken or suffered by any Holder in reliance upon any notice, direction, instruction, consent, statement or other document believed by it such Representative to be genuinegenuine and to have been signed by such Holder, nor for any other action or inaction, except the gross negligence, bad faith or willful misconduct of the Representative. In all questions arising under this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents the Representative may rely on the advice of outside counsel, and (iii) reasonably assume that a signatory has proper authorization the Representative shall not be liable to sign any Holder for anything done, omitted or suffered in good faith by Representative based on behalf of the applicable Company Securityholder or other partysuch advice.
(d) Certain Company Securityholders have entered into an engagement agreement with The Holders shall severally (each based on its Holder Indemnification Percentage) but not jointly indemnify the Representative to provide direction to and hold the Representative in connection with its services under this Agreement and harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither part of the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative’s duties hereunder, including the Representative will reimburse the Company Securityholders the amount reasonable fees and expenses of such indemnified Representative Loss received any legal counsel or other advisors reasonably retained by the Representative to the extent attributable to such gross negligence or willful misconductRepresentative. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, All fees and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing its duties shall be borne by the Holders in accordance with their respective Holder Indemnification Percentage, provided that such actionsfees and expenses shall first be funded from the Representative Cost Escrow Account. Notwithstanding anything in this Agreement to In the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting event that the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended Representative determines that he is entitled to be applicable to reimbursed or advances any such fees and expenses, he will notify the indemnities provided Escrow Agent of the same in writing, in which event the Escrow Agent shall disburse the amount of such fees and expenses to the Representative Group (up the amount of the remaining Representative Cost Escrow Amount). Parent, Surviving Corporation, and their Affiliates will have no duty to investigate or evaluate any request by the Company Shareholders under Representative for reimbursement or advancement of fees or expenses, and Holders hereby waive and release Parent, Surviving Corporation, and their Affiliates from any and all claims, damages, liabilities, or expenses for Parent’s reliance on any written notice or request from Representative in this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementregard.
(e) The Representative may resign at At any time Holders representing at least seventy percent (70%) in interest of the Holders may, by giving thirty written consent, appoint another Person as Representative. Notice together with a copy of the written consent appointing such Person and bearing the signatures of Holders of at least seventy percent (3070%) days’ notice in interest of the Holders must be delivered to Buyer Parent and, if applicable, the Escrow Agent and the Company Securityholders; In Paying Agent not less than ten (10) days prior to such eventappointment. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent and, if applicable, the successor Escrow Agent and Paying Agent. For the purposes of this Section 9.01, “seventy percent (70%) in interest of the Holders” shall mean Holders representing in the aggregate at least seventy percent (70%) of the percentage interests in the Aggregate Merger Consideration.
(f) In the event that the Representative becomes unable or unwilling to continue in his or its capacity as the Representative, or if the Representative resigns as a Representative, Holders representing at least seventy percent (70%) in interest of the Holders may, by written consent, appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of at least seventy percent (70%) in interest of the Holders must be delivered to Parent and, if applicable, the Escrow Agent and Paying Agent. Such appointment shall be selected by effective upon the Company Securityholders holding at least a majority later of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, date indicated in the case of a Representative that consent or the date ten (10) days after such consent is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contraryreceived by Parent and, if applicable, the Escrow Agent and Paying Agent.
(g) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Representative resigns death, incompetency, bankruptcy or otherwise is unable to perform its obligations as suchliquidation of any Holder, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal consummation of the Representative or any member of the Advisory Group and the Closing and/or any termination Merger. The provisions of this Agreement Section 9.01 shall be binding upon the executors, heirs, legal representatives, successors and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out assigns of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings witheach Holder, and notices any references in this Agreement to any Holder or the Holders shall mean and frominclude the successors to such Holder’s rights hereunder, whether pursuant to testamentary disposition, the Representative to satisfy any obligations it might have under this Agreement laws of descent and distribution or the Escrow Agreementotherwise.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Health Insurance Innovations, Inc.)
Representative. Each Stakeholder approves the designation of and designates (ai) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or Park Place as the Escrow AgreementAgent, by virtue of the approval of this Agreement and the Acquisition as defined below (and no act of Park Place hereby accepts such Company Securityholderdesignation), and (ii) T▇▇ ▇▇▇▇▇ as the consummation representative of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder Stakeholders and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on behalf of each Stakeholder (such Company Securityholder’s behalf for all purposes in connection with this Agreement person and any agreements ancillary hereto including to (Asuccessor, the “Representative”) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement claims for indemnification pursuant to Article VI and the Escrow taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by the Representative pursuant to this Agreement, including the exercise of the power to: (Ca) receive all notices authorize the release or delivery to LGIQ of Earnout Shares or Closing Shares in satisfaction of indemnification claims of any Buyer Indemnitee pursuant to Article VI; (b) agree to, negotiate, enter into settlements and service compromises of, and comply with orders of processcourts with respect to, any claim for indemnification pursuant to pursuant to Article VI; (c) resolve, settle or compromise any claim for indemnification made pursuant to pursuant to Article VI; and (Dd) take all actions necessary in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or judgment of the Representative Engagement Agreement. Notwithstanding for the accomplishment of the foregoing, the . The Representative shall will have no obligation authority and power to act on behalf of each Stakeholder with respect to the Company Securityholdersdisposition, except as expressly provided herein, in the Escrow Agreement settlement or other handling of all claims for indemnification pursuant to pursuant to Article VI and in the Representative Engagement Agreement, and for purposes of clarity, there are no all rights or obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedulearising under pursuant to Article VI. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to Stakeholders will be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party actions taken and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission documents executed by the Representative in connection with Article VI, and the Buyer Indemnitees will be entitled to rely on any action or decision of the Representative’s services pursuant to . In performing the functions specified in this Agreement, and the Representative will not be liable to any agreements ancillary hereto while acted Stakeholder in good faith, except for liability directly resulting from the absence of gross negligence or willful misconduct on the part of the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company SecurityholderEach Stakeholder will severally, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, on a pro rata basis based on such Stakeholder’s proportional share of the unissued portion of the Earnout Shares being held in escrow by each Company Securityholder will indemnifyB▇▇▇▇ (such shares, defend the “Escrow Fund”), indemnify and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any asserted liability incurred without gross negligence or willful misconduct on the part of the Representative 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 Losses”) arising out of or in connection with the Representative’s execution acceptance or administration of his duties hereunder. Any out-of-pocket costs and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be reasonably incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement connection with actions taken by the Representative pursuant to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting terms of Article VI (including the recourse against non-parties, otherwise applicable to hiring of counsel and the Company Securityholders set forth elsewhere in this Agreement are not intended to incurring of legal fees and costs) will be applicable to paid directly by the indemnities provided Stakeholders to the Representative Group on a pro rata basis based on each Stakeholder’s proportional share of the Escrow Fund. The Representative shall have no obligation under this Agreement, whether with respect to third-party claims or non-third party claims, for any amounts in excess of the Escrow Fund then held by Buyer (other than in his capacity as a Stakeholder). The Representative shall have no obligation under this Agreement in the case of any failure by any Stakeholder (other than the Representative himself) to have good and valid title to the shares of Park Place securities held by such Stakeholder. The person serving as the Representative may be replaced from time to time by the Company Shareholders under this section. The foregoing indemnities will survive the ClosingStakeholders who held, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (outstanding shares of Park Place Common Stock, on an as as-converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order The “Representative ” shall initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇. By voting in favor of the Merger and/or by executing and submitting a Transmittal Letter, each Equity Holder irrevocably makes, constitutes and appoints the Representative as its, his or her true and lawful agent, attorney - in- fact and representative and authorizes and empowers him to efficiently administer fulfill the obligations specified role of the Representative contemplated hereunder for purposes of this Agreement. The Representative shall have full power of substitution to act and decide to give consent and instruction, as applicable, in the name, place and stead of the Equity Holders and each of them in all matters in connection with this Agreement and efficiently represent the interests Escrow Agreement. Without limitation, the Representative ’s power shall include the following powers: give and receive notices and communications; the power to act for the Equity Holders and to authorize payment from the Escrow Amount with regard to the indemnification under Article VIII; to agree to, negotiate, enter into settlements of or compromise any claim on behalf of or against the Equity Holders; to authorize agreement to or dispute the adjustment to the Purchase Price; the power to do or refrain from doing all such further acts and things on behalf of the Equity Holders that the Representative deems necessary or appropriate in his good faith 7/3393869.1 discretion, and to execute all such documents as the Representative shall deem necessary or appropriate in connection therewith; and the power to receive service of process in connection with any claims hereunder. Actions taken by the Representative in accordance with this Section 3.08 shall be binding upon each Equity Holder, and Buyer and Merger Sub shall be entitled to rely upon such actions by the Representative. By execution of this Agreement, the Representative hereby accepts such appointment. In the event of the incapacity of the Representative, a successor representative will be appointed by the vote or the written consent of the Equity Holders holding a majority of the Company Securityholders Stock immediately prior to the Effective Time. In the event such action is taken by majority written consent, a copy of such consent shall be mailed to all other Equity Holders within a reasonable time following such execution. The Equity Holders shall be entitled to change the Representative by the vote of the Equity Holders holding a majority of the Company Stock immediately prior to the Effective Time and upon written notice to Buyer, such change to be effective as of the date such notice is received by Buyer. The Representative shall not be liable to any Equity Holder for any act done or omitted under this Agreement or the Escrow Agreement as the Representative while acting in good faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Equity Holders shall jointly and severally indemnify (except with respect to the ESOT, which shall be several) and hold the Representative, and each successor thereof, harmless from any and all matters arising under liability and expenses (including, without limitation, counsel fees) which may arise out of any action taken or omitted by him as Representative in accordance with this Agreement or the Escrow Agreement, by virtue of as the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)same may be amended, and the consummation of the Acquisition modified or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholderssupplemented, except such liability and expense as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by result from any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death done or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative omitted under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which as the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted than in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to This indemnification shall survive the resignation closing or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement
Representative. (a) In order By (i) voting in favor of the Merger, (ii) executing and delivering to efficiently administer Buyer the obligations specified Supporting Stockholder Option Agreement, (iii) executing and delivering an Option Termination Agreement to the Company and Buyer, (iv) exchanging shares of Company Capital Stock for any payment pursuant to Article II, (v) executing and delivering a Bonus Recipient Agreement or (vi) accepting any payment under an Option Termination Agreement or Bonus Recipient Agreement, each Company Securityholder irrevocably approves and designates the Representative to be the representative, individually and collectively, of the Company Securityholders for purposes of this Agreement as set forth in this Section 2.9 or otherwise as specifically set forth in this Agreement and efficiently represent the interests for purposes of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (Supporting Stockholder Option Agreement. The Company Securityholders shall be bound by any and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints all actions taken by the Representative as its exclusive agent for such Company Securityholder pursuant to the powers granted to the Representative pursuant to this Section 2.9. Buyer and as such Company Securityholder’s Merger Sub shall be entitled to rely in good faith upon any communication or writings given or executed by the Representative that on their face purport to be within the scope of this Section 2.9.
(b) The Representative is hereby appointed and constituted the true and lawful attorney-in-fact effective upon the Closingof each Company Securityholder, with full power and authority in such Company Securityholder’s its, his or her name and on such Company Securityholder’s its, his or her behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement, the Supporting Stockholder Option Agreement and the Escrow Agreement in the absolute discretion of the Representative, Representative (Bexcept to the extent otherwise required to act hereunder) represent such Company Securityholder and such Company Securityholder’s successors with respect to the following matters: (i) giving and receiving of notices hereunder or under the Supporting Stockholder Option Agreement or the Escrow Agreement, and such notice shall be deemed to have been validly given by or delivered to each Company Securityholder; (ii) contesting, defending and settling any and all matters arising under Claims for indemnification as provided for in Sections 2.8 or Article IX, including authorizing the release of cash held pursuant to the Escrow Agreement to satisfy such Claims, and including by not objecting to such Claims, (iii) taking actions delegated to the Representative in this Agreement and or the Escrow Agreement, (Civ) receive all notices taking any actions, giving any notice, releasing any funds and service of process; and (D) making any decisions as the Representative as set forth in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Supporting Stockholder Option Agreement or the Representative Engagement Escrow Agreement. Notwithstanding , (v) reviewing and commenting on any Tax Returns and acting with respect to any Tax audits or inquiries, (vi) agreeing to waive or amend, and executing any such waiver or amendment of, any provision of this Agreement or the foregoingEscrow Agreement, the Representative and any such waiver or amendment shall have no obligation to act be binding on behalf of the such Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in (vii) consummating any ancillary agreement, schedule, exhibit Contemplated Transactions to that extent action is required or the Disclosure Schedule. The Representative agrees advisable to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions be taken by the Representative under this Agreementin his, the Escrow Agreement, her or the Representative Engagement Agreement shall be binding upon its capacity as such or by any Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company SecurityholderSecurityholders, and (viii) taking all defenses which may be available to any Company Securityholder to contestactions necessary, negate convenient or disaffirm advisable in the action judgment of the Representative taken in good faith under this Agreement, (which judgment shall be proved conclusively by the Escrow Agreement taking of such actions) for the accomplishment of the foregoing or any of the Representative Engagement Agreement are waived.
(b) The Contemplated Transactions. This power of attorney and agency and all authority hereby conferred under this Section 2.5 is granted in consideration of the mutual covenants and the powersagreements made herein, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable irrevocable, coupled with an interest and shall not be terminated by any act of any Company SecurityholderSecurityholder or any other Person, or by operation of law, whether by such Company Securityholder’s death or disability or any other event and (ii) shall survive event. Notwithstanding the delivery of an assignment by any foregoing, Company Securityholder Securityholders holding a majority of the whole or any fraction Fully-Converted Common Shares as of immediately prior to the Effective Time, upon written notice to Buyer, the Escrow Agent and the Representative, shall have the right to remove the Representative, provided that at the time of removal of the Representative, his, her or its interest successor is appointed and acknowledges and accepts such appointment in writing. The Representative may resign at any time upon no less than 20 days’ written notice to Buyer, the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, Agent and each Company Securityholder, and if the initial Representative named in this Agreement shall resign he shall automatically and without any further action by virtue any Person be replaced by A▇▇▇▇▇ ▇▇▇▇▇▇▇. Thereafter, A▇▇▇▇▇ ▇▇▇▇▇▇▇ may resign at any time upon no less than 20 days’ written notice to Buyer, the Escrow Agent and each Company Securityholder (or such longer notice period of up to no less than 60 days’ written notice if a successor Representative has not been selected prior to the applicable resignation date). If A▇▇▇▇▇ ▇▇▇▇▇▇▇ shall give notice of intent to resign, or ceases to act as the Representative for any reason, the holders of at least a majority of the approval Fully-Converted Common Shares outstanding as of immediately prior to the Effective Time shall, by written notice to Buyer, appoint a successor Representative within 30 days. After the Representative’s resignation or removal hereunder, the provisions of this Agreement and Section 2.9 shall continue in effect with respect to the Acquisition (and no act Representative who resigned or was removed in respect of such Company Securityholder)any actions taken or omitted to be taken by the Representative while he, renounces such Company Securityholder’s right she or it was acting as the Representative. It is agreed that the Representative shall at all times be the same Person as the “Shareholder Representative” pursuant to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Supporting Stockholder Option Agreement.
(c) The Representative agrees shall not be liable to be bound by all obligations any of the Company Securityholders or any of their respective Affiliates in the absence of fraud, gross negligence or willful misconduct on the part of the Representative under this Agreement for any decisions made or the Escrow Agreement to which it is a party and shall take any and all actions which taken by the Representative believes are necessary or appropriate under pursuant to this Agreement, the Escrow a Supporting Stockholder Option Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholdersan Option Termination Agreement, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this a Bonus Recipient Agreement or the Escrow Agreement and engaging counsel shall have no duties or obligations except those expressly set forth in this Agreement, a Supporting Stockholder Option Agreement, an Option Termination Agreement, a Bonus Recipient Agreement and accountants in connection with the foregoing mattersEscrow Agreement. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheetshall not be subject to any implied duties, (ii) rely upon shall have no duty to take any signature believed by it to be genuinediscretionary action or exercise any discretionary powers, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless that, in the opinion of its counsel, reasonably could be expected to expose the Representative has been provided with funds, security to Liability or indemnities which, in its determination, are sufficient that is contrary to protect the Representative against the costs, law. All expenses and liabilities which may be incurred by of the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided excess of amounts available to the Representative Group to cover Representative Expenses pursuant to the Escrow Agreement shall be borne by the Company Shareholders under this sectionSecurityholders. The foregoing indemnities will survive the Closing, the resignation or removal Each of the Representative or the termination Company Securityholder agrees, severally, in proportion to that number of this Agreement.
(e) The Representative may resign at any time shares of Fully-Converted Common Shares held by giving thirty (30) days’ notice to Buyer and the such Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) Securityholder as of immediately prior to the Closing. If Effective Time (other than Dissenting Shares) over the Representative is unable to perform his, her or its obligations under this Agreement or, in the case total number of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority shares of the Company Ordinary Fully-Converted Common Shares (on an as converted basis) outstanding as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company Effective Time (other than privileged documentsDissenting Shares), and (ii) all Company personnel as reasonably identified by to indemnify the Representative, in each casefrom and against any claims, to the extent reasonably related to such claims under the Claim Notice; providedlosses, howeverdamages, that (x) access to such booksliabilities, recordspenalties, documents interest, costs and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges expenses (including attorney-client privileges) of Buyer or its Subsidiaries (reasonable attorneys, accounting and consulting fees and other reasonable expenses, including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the such reasonable out-of-pocket expenses of Buyer and its Subsidiaries expense incurred in connection therewith will be promptly reimbursed by with investigating, defending against or settling any Claim or preparing any Tax Return, and in each case including any Representative Expenses) that the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than incur as a result of its acting as the Representative hereunder or pursuant to the Escrow Agreement or in connection with the performance of any of its duties hereunder or pursuant to the Escrow Agreement (including those arising from any indemnification by the Representative of the Escrow Agent pursuant to the Escrow Agreement) (collectively “Representative Losses”) to the fullest extent permitted by Applicable Law, except to the extent that such Representative Losses are caused by actions taken by, or omitted to be taken by, the Representative constituting fraud, gross negligence or willful misconduct. .
(d) The Representative will hold these funds separate from its corporate fundscovenants and agrees that, 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. As soon as practicable following the completion of the Representative’s responsibilitiesClosing Date, he, she or it will enter into the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Mgi Pharma Inc)
Representative. (a) In order to efficiently administer By approval of the obligations specified in Merger, this Agreement and efficiently represent the interests transactions contemplated hereby by the Stockholders, by execution of this Agreement by the Principal Stockholders, and pursuant to the terms of the Company Securityholders with respect Letter of Transmittal, the Stockholders shall and hereby do irrevocably make, constitute and appoint or, as applicable are deemed to all matters arising under this Agreement have made, constituted or appointed the Escrow AgreementRepresentative as their agent, by virtue attorney-in-fact and representative and authorize and empower it to fulfill the role of the approval Representative contemplated hereunder for purposes of this Agreement and the Acquisition Escrow Agreement. Notices to or from the Representative shall constitute notice to or from Stockholders (including the Principal Stockholders) and no act holders of such Company Securityholder)Securities. Parent, the Company, Merger Sub and the consummation Surviving Corporation shall be entitled to rely upon the acts, decisions, consents and instructions of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes permitted hereunder and under the Escrow Agreement and as acts, decisions, consents and instructions of the Stockholders. Parent, Merger Sub, the Surviving Corporation, Disbursing Agent and Escrow Agent shall be and hereby are relieved of any liability to any person for any acts done by them in accordance with such decisions, consents or instructions.
(b) The Representative shall have full power of substitution to act and decide to give consent and instruction, as applicable, in the name, place and stead of the Stockholders and each of them in all matters in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement. The Representative’s power shall include the following powers, (C) without limitation: give and receive all notices and service of processcommunications; and (D) in general the power to do all things act for the Stockholders and to perform all actsauthorize payment to any Indemnified Party with regard to the indemnification under Article X; the power to object to such payments, including executing and delivering to agree to, negotiate, enter into settlements of or compromise any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act claim on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement Stockholders or demand arbitration and in the Representative Engagement Agreement, comply with orders of courts and for purposes awards of clarity, there are no obligations arbitrators with respect to such claims; to authorize agreement to or dispute of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted adjustment to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, Merger Consideration pursuant to Section 2.6.2; the power to transact or participate in matters of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under litigation or arbitration in connection with this Agreement or the Escrow Agreement subject to which it is a party the terms hereof and shall take any thereof; the power to do or refrain from doing all such further acts and all actions which things on behalf of the Stockholders that the Representative believes are deems necessary or appropriate in its sole discretion, and to execute all such documents as the Representative shall deem necessary or appropriate in connection therewith; and the power to receive service of process in connection with any claims hereunder. Parent and the Surviving Corporation shall afford the Representative reasonable access to officers, books and records of the Surviving Corporation during regular business hours and as reasonably required in the performance of the Representative’s duties under this Agreement, provided that the Representative shall assume and abide by customary confidentiality restrictions in relation to the foregoing, including entering into a customary confidentiality agreement with Parent or the Surviving Corporation should Parent or the Surviving Corporation so request.
(c) If the Representative shall decease or otherwise becomes incapacitated and unable to serve as Representative, his successor shall be appointed by a majority-in-interest of the Escrow Amount.
(d) The Representative shall act for the Stockholders hereunder in the manner the Representative believes to be in the best interest of the Stockholders and consistent with its obligations hereunder, but shall have no duties or obligations except as specifically set forth herein and in the Escrow Agreement. In acting as representative of the Stockholders, or the Representative Engagement Agreement (including entering into may rely upon, and shall be protected in acting or refraining from acting upon, an opinion or advice of counsel, certificate of auditors or other certificate, statement, instrument, opinion, report, notice, request, consent, order, arbitrator’s award, appraisal, bond or other paper or documents reasonably believed by them to be genuine and to have been signed or presented by the proper party or parties. The Representative shall not be personally liable to the Stockholders for any amendment action taken, suffered or omitted by each of same) for them in good faith and on behalf reasonably believed by each of them to be authorized or within the discretion of the rights or powers conferred upon them by this Section 2.11. The Representative may consult with counsel and any advice of such counsel shall be full and complete authorization and protection in respect to any action taken or suffered or omitted by each of them in such capacity in good faith and in accordance with such opinion of counsel. The Representative may perform its duties as the Representative either directly or by or through agents or attorneys, and the Representative shall not be responsible to the Stockholders for any misconduct or negligence on the part of any agent or attorney appointed with due care by them hereunder. The Representative shall not be liable for any action taken in the scope of the Representative’s authority hereunder unless such action is finally determined to have been grossly negligent or reckless.
(e) Each holder of Series D Shares and shares of Company SecurityholdersCommon Stock shall, including defending ratably in accordance with his, her or its Escrow Allocation, pay or reimburse the Representative, upon presentation of an invoice, for all indemnity fees, costs, expenses and disbursements incurred by or at the direction of the Representative (including, without limitation, fees and expenses of counsel, accountants, and other advisors to or retained by the Representative) in connection with the defense, negotiation and settlement of indemnification claims pursuant to Article 9X, consenting toand any other matters contemplated to be handled by the Representative by this Section 2.11. Such amounts shall first be paid out of an advance amount equal to Three Hundred and Fifty Thousand Dollars ($350,000) (the “Advance Amount”), compromising or settling all such indemnity claimswhich, conducting negotiations with Buyer as contemplated by Section 2.5.1(e), will be delivered by Parent to the Representative at the Closing as a deduction from the Preliminary Merger Consideration and its agents regarding indemnity claims, dealing with Buyer and which the Company Representative shall maintain in a separate account for application under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsSection 2.11. The Representative shall be entitled to: (i) rely upon to pay all fees, costs, expenses and disbursements incurred by or at the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf direction of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from administration of the Representative’s willful misconduct or gross negligence. By virtue of the approval of duties under this Agreement and from the Acquisition and no other act of any Company SecurityholderAdvance Amount. In addition, each holder of Series D Shares and shares of Company Securityholder (based on such Company Securityholder’s Pro Rata Share)Common Stock shall, severally and not jointlyratably in accordance with his, by each Company Securityholder will her or its Escrow Allocation, indemnify, defend and hold harmless the Representative Group (in and the case Representative’s Affiliates and their respective partners, directors, officers, managers, members, agents, attorneys, employees and stockholders of each of the Advisory Group, in their capacity as suchforegoing (to the extent not reimbursed through the Advance Amount or the Escrow Amount) 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 Losses”) arising out of indemnification claim pursuant to Article X hereof that such indemnitees may suffer or incur in connection with its capacity as the Representative’s execution and performance of Representative (or a related party thereof), or any action taken or omitted by such indemnitees under this Agreement and any agreements ancillary hereto(except such acts or omissions resulting from such indemnitee’s willful misconduct, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct fraud). The obligations of each holder of Series D Shares and shares of Company Common Stock under this Section 2.11(e) shall not exceed the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable Merger Consideration actually paid to such gross negligence Stockholder (less all amounts previously paid or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds set aside in the Representative Expense Fund, (ii) second, from any distributions satisfaction of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed claims pursuant to the foregoing within twenty (20) days, then, without any further action of Article X and amounts paid or consent reimbursed by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced such Stockholder in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documentsSection 2.11(e), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will shall not be liable for any loss of principal of the act done or omitted hereunder as Representative Expense Fund while acting in good faith other than as a result faith, and any act done or omitted to be done pursuant to the advice of its gross negligence or willful misconductlegal counsel shall be conclusive evidence of such good faith. The Representative will hold these funds separate shall have the right, at its option at any time and from its corporate fundstime to time, will not use these funds to engage a third-party provider of stockholder representative services to replace the Representative as the Representative for its operating expenses any or all purposes hereunder. In any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion such circumstance, such third-party provider shall have all of the Representative’s responsibilities, rights and obligations as the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders as set forth in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Drugstore Com Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests Each of the Company Securityholders with respect to all matters arising under this Agreement Sellers hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as its, his or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its her exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact (the “Representatives”) (i) to give and receive notices and communications with respect to the provisions of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, (ii) to amend the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action terms of the Representative taken in good faith under this Agreement, (iii) to agree to, negotiate, enter into settlements or compromises of matters arising under the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power provisions of attorney and all authority conferred under this Section 2.5 and the powersAgreement, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (iiiv) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, in the Escrow Agreement, or judgment of the Representative Engagement Agreement (including entering into any amendment of same) for and Representatives to be taken on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all Sellers under such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, agency is irrevocable and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided coupled with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Noticeinterest; provided, however, that (x) access the Representatives shall have no authority to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (act on behalf of any Seller with respect to an indemnity claim under Section 7.2. Notwithstanding the foregoing, upon the death or incapacity of either Representative, or his ceasing to be an employee or independent contractor of the Company Securityholders).
(h) The or the Surviving Corporation or any Affiliate, the remaining Representative Expense Fund will shall be used the sole Representative and shall notify the Parent of such change in writing. Notwithstanding the foregoing, upon the death or incapacity of both Representatives, or their both ceasing to be an employee or independent contractor of the Company, or the Surviving Corporation or any Affiliate the Sellers shall appoint a successor Representative and shall notify the Parent of such successor in writing. Any successor Representative must be an employee of the Company or the Surviving Corporation or any Affiliate. Notwithstanding the foregoing, no bond shall be required of the Representatives and Sellers shall be responsible for the purposes expenses of paying directlythe Representatives incurred in the course of their duties as Representative, including reasonable attorneys’ fees. Notices or reimbursing the communications to or from a Representative for any third party expenses incurred pursuant shall constitute notice to or from Sellers in respect of matters relating to this Agreement and the Related AgreementsAgreement. Any decision, act, consent or (ii) as otherwise determined by the Advisory Group. The instruction of a Representative is not acting as shall constitute a withholding agent decision, act or in any similar capacity in connection with the Representative Expense Amountconsent of all Sellers, and has no tax reporting shall be final, binding and conclusive upon each Seller, and Parent may rely upon any decision, act, consent or income distribution obligations. The Company Securityholders will not receive any interest instruction of a Representative as being the decision, act, consent or earnings on the Representative Expense Fund instruction of each and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingevery Seller.
Appears in 1 contract
Sources: Merger Agreement (Ladenburg Thalmann Financial Services Inc)
Representative. (a) In order Subject to efficiently administer the obligations specified in this Agreement terms set forth herein and efficiently represent the interests effective as of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementClosing, by virtue of the approval of this Agreement ▇▇▇▇▇▇ Altro is hereby constituted and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints appointed as the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s agent and true and lawful attorney-in-fact effective upon for the ClosingSellers, and the Representative hereby accepts such appointment. Each Seller, by virtue of its adoption of this Agreement and approval of the Transactions, will be deemed to have appointed and constituted the Representative as its agent and true and lawful attorney-in-fact with the powers and authority and discretion as set forth in this Agreement. The Representative will have full power and authority in such Company Securityholder’s name to represent the Sellers and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s their respective successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service with full powers of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreementsubstitution, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreementhereunder and thereunder authorized by the Sellers (or if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the Escrow Agreement, or voting power represented by the Representative Engagement Agreement shall Shares issued and outstanding immediately prior to the Closing (the “Majority Holders”) will be binding upon such Company Securityholder the Sellers and such Company Securityholder’s their respective executors, heirs, legal representatives and successors as if expressly confirmed and ratified in writing by each of them, and no Seller will have the right to object, dissent, protest or otherwise contest the same. In furtherance of the foregoing and without limitation of the foregoing, the Representative will be the exclusive agent for and on behalf of the Sellers to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Buyer (on behalf of itself or any other Sellers) or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Buyer of cash or other property from the Working Capital Fund upon written authorization by the Majority Holders; (4) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance unless otherwise specifically set forth in this Section 5.15(a); (5) subject to Section 7.3 and upon written authorization by the Majority Holders, execute for and on behalf of each Sellers any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages) and (6) upon written authorization by the Majority Holders, enter into any waiver or extension pursuant to Section 7.4. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Sellers, and no Seller will have any right to act on its own behalf with respect to any such Company Securityholdermatters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Seller or by operation of Law, whether by the death or incapacity of any Seller or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Seller or the Representative will have received any notice thereof. Each Seller hereby waives any and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or pursuant to the authority granted in this Agreement. Notwithstanding the power of attorney granted in this Section 5.15, no agreement, instrument, acknowledgement or other act or document will be ineffective solely by reason of the Sellers having signed such agreement, instrument, acknowledgement or other act or document directly. Any action taken by the Representative Engagement pursuant to the authority granted in this Agreement are waivedwill be effective and absolutely binding on the Sellers notwithstanding any contrary action of, or direction from, any such Seller, except in the case of fraud by the Representative. Notwithstanding anything else contained herein, Representative may not take any action that would materially and adversely impact any Seller without such Seller’s prior written consent.
(b) The power of attorney and all authority conferred under this Section 2.5 and In the powers, immunities and rights to indemnification granted to event that the Representative Group hereunder: (i) becomes unable to perform his responsibilities hereunder or resigns from such position, the Majority Holders shall select another representative to fill such vacancy, and such substituted representative shall be irrevocable and shall not deemed to be terminated by any act the Representative for all purposes of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound All expenses, if any, incurred by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting performance of his duties as the generality Representative (the “Representative Expenses”) in excess of the foregoing, Representative Fund will be borne and paid by virtue the Sellers in accordance with their Pro Rata Share of Company Common Stock as of immediately prior to the Closing. No bond will be required of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsRepresentative. The Representative shall will also be entitled to: to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative, acting reasonably. Representative Expenses will be paid first using amounts on deposit in the Representative Fund, and second directly by the Sellers promptly against presentation of an invoice by the Representative. The Representative is hereby authorized to withdraw all or any portion of the Representative Fund to pay for any Representative Expenses. Notices or communications to or from the Representative will constitute notice to or from each of the Sellers.
(id) rely upon The Representative will not be liable to any Seller for any act done or omitted hereunder as the Payment SpreadsheetRepresentative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. In the performance of its duties hereunder, (ii) the Representative will be entitled to rely upon any signature document or instrument reasonably believed by it to be genuine, accurate as to content and (iii) reasonably signed by the Sellers or by Buyer or the Escrow Agent. The Representative may assume that a signatory any Person purporting to give any notice in accordance with the provisions hereof has proper authorization been duly authorized to sign do so. The Sellers will jointly and severally indemnify the Representative and hold the Representative harmless against any loss, Liability or expense incurred without gross negligence or bad faith on behalf the part of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement’s duties hereunder.
(e) The Representative may resign at any time by giving thirty (30) days’ notice By its signature to Buyer and the Company Securityholders; In such eventthis Agreement, the successor initial Representative shall be selected hereby accepts the appointment contained in this Agreement, as confirmed and extended by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an this Agreement, and agrees to act as converted basis) as of immediately prior to the Closing. If the Representative is unable and to perform his, her or its obligations under this Agreement or, in discharge the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority duties and responsibilities of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination terms of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition Each Stockholder hereby appoints (and no act each holder of such Company Securityholder), and In the consummation of the Acquisition Money Options shall appoint in his or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints her respective Option Cancellation Agreement) the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes of Stockholders to give and receive notices and communications in connection with this Agreement and any agreements ancillary hereto including the transactions contemplated hereby, to (A) act according authorize and agree to adjustments to the terms Cash Payment and Earn-Out Payments under Article 1, to modify the Business Plan and other applicable provisions of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, to take all actions on behalf of Stockholders pursuant to this Agreement, and to take all actions necessary or appropriate in the Escrow Agreement or judgment of the Representative Engagement Agreement. Notwithstanding for the accomplishment of the foregoing. More specifically, the Representative shall have no obligation the authority to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement make all decisions and in the Representative Engagement Agreement, determinations and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that take all actions taken by the Representative under this Agreement, the Escrow Agreement, (including giving Consents or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available agreeing to any Company Securityholder amendments to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow any Ancillary Agreement to which it is a party and shall take any and all actions which or to the Representative believes are necessary termination hereof or appropriate under this Agreement, the Escrow Agreement, thereof) required or the Representative Engagement Agreement (including entering into any amendment of same) for and permitted hereunder on behalf of each such Stockholder, and any such action, decision or determination so made or taken shall be deemed the Company Securityholdersaction, including defending all indemnity claims decision or determination of each such Stockholder, and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Stockholder hereunder or pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and any Ancillary Agreement shall be deemed so given if given to the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing mattersRepresentative. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power shall be authorized, in connection with the Closing, to execute all certificates, documents and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof agreements on behalf of such Company Securityholder and its successorsin the name of Stockholders necessary to effectuate the Closing and related transactions. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it authorized to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign take all actions on behalf of the applicable Company Securityholder Stockholders in connection with any claims made under Articles 8 or 9 of this Agreement, to defend or settle such claims, and to make payments in respect of such claims on behalf of Stockholders. The Stockholders may remove or replace the Representative by a vote of holders that owned a majority of the Common Stock immediately prior to Closing. If the Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Stockholders shall appoint a successor to the Representative, and shall immediately thereafter notify Buyer of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder. No bond will be required of the Representative, and the Representative will receive no compensation for its services. Notices or communications to or from the Representative will constitute notice to or from each of Stockholders. Notwithstanding anything to the contrary herein, in the event of a claim hereunder against a single Participating Equityholder, and not any other partyParticipating Equityholders, such affected Participating Equityholder shall be entitled to control the defense of such claim.
(db) Certain Company Securityholders have entered into an engagement agreement with the The Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to will not be liable for any act done or omitted hereunder as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of its bad faith or willful misconduct. The Representative may consult with legal counsel, independent public accountants and other experts selected by it and as between the Advisory GroupRepresentative and the Participating Equityholders, shall not be liable for any action taken or omitted to be taken in their capacity as such) from good faith by it in accordance with the advice of such counsel, accountants or experts. Stockholders will severally indemnify the Representative and hold the Representative harmless against any Adverse Consequences incurred on the part of the Representative 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative, ’s duties hereunder. Buyer agrees that except as may be provided in Article 8 if the Representative is also a Participating Equityholder, it will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative not look to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination underlying assets of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its for the satisfaction of any obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares or any of the Participating Equityholders
(on an as converted basisc) as A decision, act, consent or instruction of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as suchwill constitute a decision of all Stockholders and will be final, binding and conclusive upon each such -75- Stockholder, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) daysBuyer may rely upon any such decision, thenact, without any further action consent or instruction of or consent by any Person, the Advisory Group, shall be the Representative as being the decision, act, consent or instruction of each such Stockholder. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for all purposes hereunder until replaced any acts done by such Buyer Indemnitees in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation such decision, act, consent or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion instruction of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Allscripts Healthcare Solutions, Inc.)
Representative. (a) In order to efficiently administer Each Shareholder irrevocably appoints ▇▇▇ ▇▇▇▇ (the obligations specified in this Agreement “Representative”) with power of designation and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative assignment as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, and agent with full power of substitution, to act solely and exclusively on behalf of, and in the name of, such Shareholder with the full power, without the consent of such Shareholder, to exercise as the Representative in its sole discretion deems appropriate, the powers which such Shareholder could exercise under the provisions of this Agreement and to take all actions necessary or appropriate in the judgment of the Representative in connection with this Agreement, which shall include the power and authority in to amend, modify, waive or provide consent with respect to, any provision of this Agreement and to execute, deliver and accept such Company Securityholder’s name waivers and on such Company Securityholder’s behalf for consents and any and all purposes notices, documents, certificates or other papers to be delivered in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms consummation of this Agreement and the Escrow Agreement in the absolute discretion of transactions contemplated hereby as the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under in its sole discretion, may deem necessary or desirable; provided that the Representative may not amend this Agreement without the consent of such Shareholder if the consideration to be received by such Shareholder pursuant to Article II hereof will be reduced by the proposed amendment or if such Shareholder will be disproportionately and adversely affected by the Escrow Agreementproposed amendment relative to the other Shareholders of the same class. The Representative shall have the power to waive, (C) receive all notices and service on behalf of process; and (D) in general to do all things and to perform all actseach Shareholder, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable attorney-client privileges in connection with this Agreementcommunications between such Shareholder and counsel to the Acquired Companies in connection with the transactions contemplated hereunder. The Buyer and the Buyer Indemnitees, the Escrow Agreement or if applicable, will be entitled to rely exclusively upon any notices and other acts of the Representative Engagement Agreementas being legally binding acts of each Shareholder individually and the Shareholders collectively. Notwithstanding the foregoing, The appointment and power of attorney granted by each Shareholder to the Representative shall have no obligation to act on behalf be deemed coupled with an interest and all authority conferred hereby shall be irrevocable whether by death or incapacity of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit such Shareholder or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact occurrence of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, any other event or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedevents.
(b) The power Each Shareholder acknowledges and agrees that the Representative will not be liable to such Shareholder for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of attorney reasonable judgment, and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Shareholders will jointly and severally indemnify the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by hold it harmless against any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death Losses incurred without gross negligence or disability or any other event and (ii) shall survive bad faith on the delivery of an assignment by any Company Securityholder part of the whole Representative and arising out of or any fraction in connection with the acceptance or administration of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations duties under this Agreement.
(c) The Representative agrees to be bound by all obligations of Shareholders will reimburse the Representative under this Agreement or the Escrow Agreement to which it is a for their pro rata share, of any out-of-pocket, independent, third-party fees and shall take any expenses (including fees and all actions which expenses of counsel, accountants and other advisors) incurred by the Representative believes that arise out of or are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof acceptance or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion administration of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingduties under this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according Subject to the terms and conditions of this Section 11.19, ▇▇▇▇ Capital Partners, LP is designated as the Representative to act on behalf of the Stockholders and Optionholders for certain limited purposes, as specified herein. The Necessary Stockholder Approval and receipt of any consideration pursuant to this Agreement will, to the maximum extent permitted under applicable Law (including DGCL § 251(b)), constitute knowing and irrevocable ratification and approval of such designation by the Stockholders and the Escrow Agreement in the absolute discretion Optionholders, and authorization of the Representative, Representative to serve in such capacity (B) represent such Company Securityholder including the exclusive power after the Effective Time to negotiate and such Company Securityholder’s successors settle any and all disputes with respect to all matters arising Buyer or Merger Sub under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Paying Agent Agreement) and will also constitute a reaffirmation, approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative Engagement on behalf of the Stockholders and Optionholders in this Agreement and the other documents delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement). Notwithstanding The Representative may resign at any time and may be removed only by the foregoingvote of Persons that collectively owned more than fifty percent (50%) of the Common Stock as of immediately prior to the Effective Time (other than (x) shares of Common Stock cancelled pursuant to Section 1.04(c) and (y) Dissenting Shares) (such Persons, the “Majority Holders”). The designation of the Representative shall is coupled with an interest, and, except as set forth in the immediately preceding sentence with respect to the resignation or removal of the Representative, such designation is irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any of the Stockholders or Optionholders. In the event that a Representative has resigned or been removed in accordance with this Section 11.19(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal, or appointment of a Representative will be delivered by the Representative to Buyer promptly after such action is taken. If there is no Representative for a period of fifteen (15) days, then Buyer may, upon ten (10) days prior notice to the Majority Holders, appoint any Stockholder as the Representative, who may be removed and replaced as provided above.
(b) The Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other 82 document delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement); provided, however, that the Representative will have no obligation to act on behalf of the Company SecurityholdersStockholders or Optionholders. The Company, except as expressly provided hereinthe Surviving Corporation, in Buyer, Merger Sub, the Escrow Agreement and in Agent, the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement Paying Agent and the Acquisition (and no act of such Company Securityholder), that all Firm will be entitled to rely on the actions taken by the Representative under this Agreement, without independent inquiry into the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action capacity of the Representative to so act. All actions, notices, communications and determinations by the Representative to carry out such functions will conclusively be deemed to have been authorized by, and will be binding upon, the Stockholders and Optionholders. Neither the Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors will have any liability to the Stockholders. Optionholders or any of their respective Affiliates with respect to actions taken, or omitted to be taken, by the Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), except the Representative will be liable for its actual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken. The Representative will be entitled to engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative (for itself, and for its officers, directors, employees, partners (general or limited), members, managers, Advisors) will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and to full indemnification against any liabilities, losses, damages, obligations, costs or expenses arising out of actions taken or omitted to be taken in good faith under this Agreementits capacity as Representative (except for those arising out of the Representative’s actual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken), including the Escrow Agreement costs and expenses of investigation, defense, settlement or adjudication of any Action, from the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 Stockholders and the powers, immunities and rights Optionholders (including from funds paid to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement and/or otherwise received by it in its capacity as the Representative, or funds to be distributed to the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary Stockholders or appropriate Optionholders under this AgreementAgreement at its direction, the Escrow Agreement, pursuant to or the Representative Engagement in connection with this Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel Paying Agent Agreement)) and accountants all payments required to be made under Article I are expressly subject to this Section 11.19(b). Each Stockholder and Optionholder will be responsible for its pro rata portion of any amount owed to the Representative in connection accordance with this Section 11.19(b) based upon the foregoing matterspro rata portion of the Aggregate Fully-Diluted Common Shares held by such Stockholder or Optionholder immediately prior to the Closing (as finally calculated pursuant to Section 1.08). Without limiting the generality In furtherance of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding notwithstanding anything in this Agreement to the contrary, any restrictions the Representative will have the power and authority to set aside and retain additional funds paid to or limitations on liability or indemnification obligations ofreceived by it, or provisions limiting the recourse against non-parties, otherwise applicable direct payment of additional funds to be paid to the Company Securityholders set forth elsewhere in Stockholders or Optionholders as Merger Consideration pursuant to this Agreement at Closing or thereafter (including to establish such reserves as the Representative determines in good faith to be appropriate for such costs and expenses that are not intended then known or determinable). The relationship created herein is not to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation construed as a joint venture or removal any form of the Representative partnership between or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of among the Representative or any member Stockholder or Optionholder for any purpose of U.S. federal or state Law, including federal, 83 state or foreign income Tax purposes. Neither the Advisory Group and the Closing and/or Representative nor any termination of this Agreement and the Escrow Agreementits Affiliates owes any fiduciary or other duty to any Stockholder or Optionholder.
(fc) Each Buyer will have no liability to Party (on its own behalf, and on behalf of the Buyer Group), and the Company Securityholders or otherwise arising out acknowledges that the Representative is party to this Agreement solely for purposes of serving as the acts or omissions of Representative or any disputes with “Representative. Buyer may rely entirely on its dealings with” hereunder, and notices to and fromno Action will be brought by, or on behalf of, any Buyer Party or the Buyer Group (including, after the Effective Time, the Representative Surviving Corporation and its Subsidiaries) against the Representative, with respect to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the ClosingTransactions or any statement, Buyer shall afford the Representative and its accountantscertificate, counsel and instruction, opinion, instrument or other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is documents delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representativehereunder, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amountactions of any other party (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties,” other than those contained in Article XI, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence deemed to require performance by, or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiesbe an agreement of, the Representative will deliver any remaining of unless performance by the Representative Expense Fund to the Paying Agent is expressly provided for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, such covenant or the Representative Expense Fund will expressly so agrees in writing, it being further understood that any such covenant or agreement may be treated enforced against the Representative, in its capacity as having been received and voluntarily set aside such, including by an appropriate Action against the Company Securityholders at the time of ClosingRepresentative).
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
Representative. (a) In order Subject to efficiently administer the obligations terms and conditions of this Section 8.15, each Stockholder hereby designates Wain as the Representative to act on behalf of the Stockholders for certain limited purposes, as specified herein. Approval of this Agreement by the Stockholders holding a majority of the outstanding Common Stock will, to the maximum extent permitted under applicable Law, constitute knowing and irrevocable ratification and approval of such designation by the Stockholders, and authorization of the Representative to serve in such capacity (including the exclusive power to negotiate and settle any and all disputes with Buyer and Merger Sub under this Agreement), and will also constitute a reaffirmation, approval, consent to and acceptance and adoption of and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative on behalf of the Stockholders in this Agreement and efficiently represent the interests other Transaction Documents, in each case, whether entered into or taken before, on or after the date of such approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Company Securityholders Common Stock as of immediately prior to the Effective Time (other than (i) shares of Common Stock cancelled pursuant to Section 1.04(c) and (ii) Dissenting Shares) (such Persons, the “Majority Holders”). The designation of the Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence with respect to all matters arising the resignation or removal of the Representative, such designation is irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any of the Stockholders. In the event that the Representative has resigned or been removed in accordance with this Section 8.15(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal, or appointment of a Representative will be delivered by the Representative to Buyer promptly after such action is taken. Buyer shall be entitled to rely upon the authority of the Representative to act as the agent of the Stockholders. Any payment by Buyer to the Representative under this Agreement shall be considered a payment by Buyer to the Stockholders and Buyer shall have no liability for any claim by any Stockholder that it did not receive the proper portion of such payment that such Stockholder was entitled to under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition otherwise.
(and no act of b) The Representative will have such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power powers and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with as are necessary or appropriate to carry out the functions assigned to it under this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representativeother Transaction Document; provided, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreementhowever, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or that the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall will have no obligation to act on behalf of the Company SecurityholdersStockholders. The Company, except as expressly provided hereinthe Surviving Corporation, in B▇▇▇▇ and Merger Sub, will be entitled to rely on the Escrow Agreement and in actions taken by the Representative Engagement Agreement, and for purposes of clarity, there are no obligations without independent inquiry into the capacity of the Representative to so act. All actions, notices, communications and determinations by the Representative will conclusively be deemed to have been authorized by, and will be binding upon, the Stockholders; provided that nothing herein shall permit the Representative to allocate or distribute or direct the allocation or distribution of any amount received in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue connection with this Agreement on behalf of the approval Stockholders other than in accordance with the terms of this Agreement and the Acquisition (and no act terms of such Company Securityholder), that all actions taken the securities held by the Representative under this AgreementStockholders immediately prior to the Effective Time. Neither the Representative, nor any of its Advisors will have any liability to Buyer, Merger Sub, the Escrow AgreementCompany, the Surviving Corporation, the Stockholders or any of their respective Affiliates, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and Person acting on behalf of the Company Securityholdersforegoing, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder actions taken, or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoingomitted to be taken, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with such capacity (or its services under this Agreement and the Escrow Agreement officers, directors, employees, partners (such Company Securityholdersgeneral or limited), including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative Advisors in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Sharetherewith), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent nothing herein shall relieve the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from be entitled to engage such Advisors as it deems necessary in connection with exercising its corporate funds, will not use these funds for powers and performing its operating expenses or any other corporate purposes functions hereunder and will not voluntarily make these funds available to its creditors (in the event absence of bankruptcy. As soon as practicable following bad faith on the completion part of the Representative’s responsibilities) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters.
(c) The Representative will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity and to full indemnification against any Losses arising out of actions taken or omitted to be taken in its capacity as the Representative, including the costs and expenses of investigation, defense, settlement or adjudication of any Action by the Stockholders (including from funds paid to the Representative under this Agreement or otherwise received by it in its capacity as the Representative or funds to be distributed to the Stockholders under this Agreement at its direction, pursuant to or in connection with this Agreement) and all payments required to be made under Article I are expressly subject to this Section 8.15(c). Each Stockholder will be responsible for its pro rata portion of any amount owed to the Representative in accordance with this Section 8.15(c) based upon the pro rata portion of the Aggregate Fully-Diluted Common Shares held by such Stockholder immediately prior to the Closing. Notwithstanding anything to the contrary herein, the Representative will deliver shall not be entitled to any remaining fees or other compensation in connection with serving as Representative hereunder. The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the Representative or any Stockholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to any Stockholder.
(d) Each Buyer Party (on its own behalf, and on behalf of the Representative Expense Fund to the Paying Agent for further distribution to Buyer Group), and the Company Securityholders acknowledge that the Representative is party to this Agreement solely for purposes of serving as the “Representative” hereunder, and no action, suit, claim, investigation, or proceeding will be brought by, or on behalf of, any Buyer Party or the Buyer Group (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) against the Representative in accordance its capacity as the Representative with their respective Pro Rata Shares. and respect to this Agreement or the agreements ancillary hereto. For tax purposesTransactions, or any statement, certificate, instruction, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” will not be deemed to require performance by, or be an agreement of, the Representative Expense Fund will be treated as having been received and voluntarily set aside unless performance by the Company Securityholders at Representative is expressly provided for in such covenant or the time of ClosingRepresentative expressly so agrees in writing).
Appears in 1 contract
Sources: Merger Agreement (Sugarfina Corp)
Representative. (a) In order 13.1. Notwithstanding any statement to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisitioncontrary contained herein, each Company Securityholder Holder irrevocably authorizes and appoints ▇. ▇▇▇▇▇ Lodge III or his/its successor appointed pursuant to this SECTION 13 (the Representative "REPRESENTATIVE") as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, attorney and representative with full power and authority to take any and all actions and execute any and all documents and agreements in such Person's name, place and stead, with the same effect as if such action were taken or such document or agreement were executed by such Person, in connection with any matter or thing relating to any provision of this Agreement that states that the Representative shall act or execute and ▇. ▇▇▇▇▇ Lodge III hereby accepts his/its appointment as the Representative and agrees to perform all of the duties of the Representative hereunder.
13.2. The Representative cannot resign or be removed by the Holders, except upon delivery to the Company Securityholder’s name of a written instrument signed by the successor Representative in which the successor Representative agrees to serve as Representative and the Holders consent thereto (such instrument being referred to as a "REPRESENTATIVE REPLACEMENT INSTRUMENT").
13.3. The signature of the Representative that purports to be on behalf of one or more of the Holders shall be deemed to be the signature of such Holders and they shall be bound by the terms of any documents and agreements executed and delivered by the Representative pursuant to this Agreement as though they were actual signatories thereto. The Company Securityholder’s shall be entitled to rely, without any investigation or inquiry by the Company, upon all action by the Representative as having been taken upon the authority of such Holders. Any action by the Representative taken on behalf of the Holders shall be conclusively deemed to be the action of the Holders, and the Company shall not have any liability or responsibility to the Holders for all purposes any action taken in reliance thereon.
13.4. The appointment of the Representative hereunder is irrevocable and coupled with an interest and any action taken by the Representative pursuant to the authority granted in this SECTION 13 shall be effective and absolutely binding on each Holder, notwithstanding any contrary action of or direction from a Holder; and
13.5. As among the Holders, a Representative may resign at any time by giving notice to the Holders, and, if there does not exist any previously designated successor thereto, upon the appointment and qualification of a successor. A Representative may be discharged, and replaced by another person to act as successor, in accordance with SECTION 13.2.
(a) The Representative shall not be liable to the Holders for any mistake of fact or error of judgment or any acts or omissions of any kind unless caused by his willful misconduct. The Representative shall be entitled to rely on any instrument or signature believed by him to be genuine and may assume that any person purporting to give any writing, notice of instrument in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general is duly authorized to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken so by the Representative under this Agreementparty on whose behalf such writing, the Escrow Agreement, notice or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedinstruction is given.
(b) The power of attorney Holders, jointly and all authority conferred under this Section 2.5 and the powersseverally, immunities and rights to indemnification granted to shall indemnify the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of hold the Company SecurityholdersRepresentatives harmless against, including defending all indemnity claims pursuant to Article 9any loss, consenting to, compromising liability or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission expense incurred by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations acceptance of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders performance of its duties under this section. The foregoing indemnities will survive Agreement, as well as the Closing, the resignation costs and expenses of defending against any claim or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)Merger Agreements.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by By virtue of the approval of the Merger and this Agreement by written consent or by having executed and delivered the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the AcquisitionOption Holder Election, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except Holders shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, its agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesfact, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by as the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company SecurityholdersHolders to give and receive notices and communications, including defending all indemnity to authorize payment to any Indemnified Party from the Escrow Fund and directly against the Company Holders in satisfaction of claims pursuant by any Indemnified Party, to Article 9object to such payments, consenting to agree to, compromising or settling all such indemnity claimsnegotiate, conducting negotiations enter into settlements and compromises of, and demand arbitration and comply with Buyer orders of courts and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement awards of arbitrators with respect to all matters arising hereunder such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Holder or thereunderby any such Company Holder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Holder, taking any and all other actions of the Representative specified in or contemplated by each case relating to this Agreement or the Escrow Agreement transactions contemplated hereby, and engaging counsel and accountants to take all other actions that are either (i) necessary or appropriate in connection with the judgment of the Representative for the accomplishment of the foregoing mattersor (ii) specifically mandated by the terms of this Agreement. Without limiting Such agency may be changed by the generality Company Holders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Representative may not be removed unless holders of a two-thirds interest of the foregoing, by virtue Escrow Fund agree to such removal and to the identity of the approval substituted agent. A vacancy in the position of this Agreement Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Representative, and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants Representative shall not receive any compensation for its services. Notices or communications to or from the Representative full power and authority shall constitute notice to interpret all or from the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. Holders.
(b) The Representative shall not be entitled to: (i) rely upon liable for any act done or omitted hereunder as Representative while acting in good faith and in the Payment Spreadsheetexercise of reasonable judgment. The Company Holders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Representative and hold the Representative harmless against any loss, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign liability or expense incurred without gross negligence or bad faith on behalf the part of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the acceptance or administration of the Representative’s execution duties hereunder, including the reasonable fees, costs and performance expenses of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered legal counsel or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused other advisors retained by the gross negligence Representative (“Representative Expenses”), of which up to $20,000 (the “Company Holder Representative Advance” and together with the Company Holder Accounting Expenses, the “Company Holder Advanced Expenses”) shall be advanced by Parent. The Representative Expenses shall be borne by the Company Holders based on their Pro Rata Portion. A decision, act, consent or willful misconduct instruction of the Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Company Holders and shall be final, binding and conclusive upon the Company Holders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Representative will reimburse as being the decision, act, consent or instruction of the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductHolders. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, The Escrow Agent and Parent are hereby relieved from any distributions of the Escrow Fund liability to the Company Shareholders any person for any acts done by them in accordance with such decision, act, consent or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct instruction of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Nanometrics Inc)
Representative. For purposes of this Agreement, the Escrowed Holders, without any further action on the part of any such Escrowed Holder, shall be deemed to have consented to the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇ ▇▇▇▇▇▇▇ is offered and accepts a full-time management position with Parent, the Surviving Corporation or any of their Affiliates, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall become the Representative automatically and without any further action on the part of the Escrowed Holders) as the Representative of such Escrowed Holders, as the attorney-in-fact for and on behalf of each such Escrowed Holder, and the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement, including the exercise of the power to (a) In order to efficiently administer the obligations specified in execute this Agreement and efficiently represent the interests Escrow Agreement, (b) authorize delivery to Parent and the Surviving Corporation of the Company Securityholders Escrow Fund, or any portion thereof, in satisfaction of Indemnification Claims, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims, (d) resolve any Indemnification Claims, and (e) take all matters actions necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Representative has unlimited authority and power to act on behalf of each Escrowed Holder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement or the Escrow Agreement. The Escrowed Holders will be bound by all actions taken by the Representative in connection with this Agreement or the Escrow Agreement, and Parent and the Surviving Corporation shall be entitled to rely on any action or decision of the Representative. The Representative will incur no liability with respect to any action taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, by virtue the Representative may rely on the advice of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)counsel, and the consummation of the Acquisition Representative will not be liable to Escrowed Holders for anything done, omitted or participating suffered in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints good faith by the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and based on such Company Securityholder’s behalf for all purposes advice. Subject to and in connection accordance with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service up to $250,000 of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, reasonable expenses of the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in be paid from the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure ScheduleFund on an as incurred basis. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action involving any expense unless the Representative has been payment of such expense is made or provided with funds, security or indemnities which, for in its determination, are sufficient a manner satisfactory to protect him. At any time during the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal term of the Representative or the termination of this Escrow Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice , Escrowed Holders entitled to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority interest of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall Escrow Amount can appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the new Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or by written consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities sending notice and rights to indemnification shall survive the resignation or removal a copy of the duly executed written consent appointing such new Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement to Parent and the Escrow Agreement.
(f) Buyer Agent. Such appointment will have no liability to be effective upon the Company Securityholders or otherwise arising out later of the acts date indicated in the consent or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings withthe date such consent is received by Parent, and notices to and fromMerger Sub (or, if after the Effective Time, the Representative to satisfy any obligations it might have under this Agreement or Surviving Corporation) and the Escrow AgreementAgent.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Getty Images Inc)
Representative. (a) In order to efficiently administer For purposes of this Agreement, the obligations specified in this Agreement and efficiently represent the interests “Representative” shall mean ▇▇▇ ▇▇▇▇▇. All actions of the Company Securityholders with respect Representative shall be made personally by the Representative, and no Representative shall be permitted to all matters arising under this Agreement assign or delegate its rights or duties, whether by operation of law or otherwise. In the Escrow Agreement, by virtue event of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)death, and the consummation of the Acquisition incapacity, incompetency, disability or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion resignation of the Representative, (B) represent the Corporation, or if dissolved at such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreementtime, the Escrow Agreement or the remaining Stockholders shall elect a new Representative Engagement Agreement. Notwithstanding the foregoing, the Representative who shall have no obligation full authority to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that take all actions required or permitted to be taken by the Representative under this Agreement, . Prompt written notice of the Escrow Agreement, or the election of a substitute Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing provided to Buyer by such Company Securityholderthe substitute Representative so elected, and all defenses which may Buyer shall be available entitled to rely on the authority of any Company Securityholder substitute Representative elected pursuant to contest, negate or disaffirm the action of the Representative taken procedures set forth in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedsubsection 20(a).
(b) The power In addition to, and not in substitution of, the provisions set forth in subsection 20(a), the Corporation and each of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to Stockholders hereby authorizes the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions (or not to take any or all actions), and/or to prepare, determine, calculate, negotiate, execute and deliver any and all agreements, notices, consents, determinations, documents and other instruments, which the Corporation or any such Stockholder (or the Representative believes are necessary on behalf of the Corporation of any such Stockholder) is required or appropriate permitted to take, prepare, determine, calculate, negotiate, execute and/or deliver under or pursuant to this Agreement and/or as contemplated by this Agreement, all in the name of and on the behalf of the Corporation or any such Stockholder, including, but not limited to, the making and execution of any amendments to this Agreement, the Escrow Agreementgiving and receipt of any notices or consents pursuant hereto, or the Representative Engagement Agreement (including entering into any amendment execution of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it documents required to be genuineexecuted in order to complete Closing hereunder or appropriate or incidental to so complete Closing hereunder, to calculate, determine, negotiate and (iii) reasonably assume that a signatory has proper authorization to sign on behalf give notice of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind otherwise with respect to any action or omission by the Representative in connection with the Representative’s services adjustment to any issuance of Buyer Shares to be made pursuant to this Agreement, to accept service of process in connection with any claim related to this Agreement and any agreements ancillary hereto while acted to prosecute, defend or settle in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any and discretion all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses indemnification disputes (including the fees and expenses hiring of counsel and experts other litigation assistance). From and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After after the Closing, Buyer shall afford be entitled to deal exclusively with the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice respect to the Buyer, during the period from the date a Claim Notice is delivered until all claims any matter arising under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each casethis Agreement. Such appointment shall, to the fullest extent reasonably related to such claims under permitted by law, survive the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries dissolution or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf liquidation of the Company Securityholders).
(h) The Representative Expense Fund will be used for Corporation, the purposes of paying directlydeath, disability, incapacity, or reimbursing the Representative for incompetency of any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingStockholder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nova Measuring Instruments LTD)
Representative. (a) In order The Partnership, on behalf of itself and on behalf of each Existing Holder, shall be deemed to efficiently administer the obligations specified in this Agreement have irrevocably constituted, appointed, authorized, directed and efficiently represent the interests empowered, effective as of the Company Securityholders Closing (and without regard to whether such holder has delivered a duly executed Letter of Transmittal) the Representative to act as sole and exclusive agent, attorney-in-fact and representative of such Existing Holder, with full power of substitution, with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (agreements ancillary hereto, including giving and no act of receiving notices hereunder, entering into any amendment or modification hereof, engaging special counsel, accountants or other advisors or incurring such Company Securityholder), and the consummation other expenses on behalf of the Acquisition Existing Holders, holding back from disbursement to any Existing Holder any such funds to the extent it reasonably determines may be necessary or participating required under the terms and conditions of this Agreement or applicable Law, negotiating, settling, compromising or otherwise resolving any dispute hereunder (including any disputes relating to the Adjustment Escrow Amount) or doing any and all things and taking any and all actions, in each case that the Acquisition Representative, in its sole and receiving the benefits thereofabsolute discretion, including the right to receive the consideration payable may consider necessary or proper or convenient in connection with or to carry out the Acquisition, each Company Securityholder appoints transactions contemplated by this Agreement or any other documents or instruments entered into in connection herewith.
(b) Neither the Representative as nor any of its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closingofficers, with full power and authority directors, managers, employees, agents or representatives shall incur any responsibility or liability whatsoever to any Existing Holder by reason of any error in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes judgment or other act or omission performed or omitted hereunder or in connection with this Agreement and or any agreements ancillary hereto including to (A) act according such other agreement, instrument or document, except to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering extent any agreements, certificates, receipts, instructions, notices act or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation failure to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit constitutes fraud or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorswillful misconduct. The Representative shall be entitled to: (i) to rely upon on the Payment Spreadsheetadvice of counsel, (ii) rely upon public accountants or other independent experts experienced in the matter at issue. The Representative shall not be required to make any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf inquiry concerning either the performance or observance of any of the applicable Company Securityholder terms, provisions or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member conditions of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share)Each Existing Holder shall, severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence fraud or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders Existing Holders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence fraud or willful misconduct. Such If not paid directly to the Representative by the Existing Holders, any such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, Fund and (ii) second, from any distributions of the amounts in the Adjustment Escrow Fund to the Company Shareholders or other post-closing payment Account at such time as such remaining amounts would otherwise be distributable to the Company SecurityholdersExisting Holders; provided, and (iii) directly that while this section allows the Representative to be paid from the Company SecurityholdersRepresentative Expense Fund and the Adjustment Escrow Account, as this does not relieve the Existing Holders of their obligation to promptly pay such Representative Losses L▇▇▇▇▇ as they are suffered or incurred; provided that incurred (consistent with the foregoing clauses (iallocation in the immediately preceding sentence), (ii) and (iii) do not nor does it prevent the Representative Group from seeking any remedies available to them it at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative otherwise. Notwithstanding anything to the extent attributable to such gross negligence or willful misconduct. In contrary in this Agreement, in no event will the Representative be required to advance its own funds on behalf of the Company Securityholders Existing Holders or otherwise. Furthermore, the The Representative shall not be required to take may consult with counsel of its own choice and will have full and complete authorization and protection for any action unless taken and suffered by it in good faith and in accordance with the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing opinion of such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this sectioncounsel. The foregoing indemnities will indemnity obligations of this Section 10.21(b) shall survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementpursuant to Section 9.02.
(fc) Buyer will Each of Parent and M▇▇▇▇▇ Sub shall have the right to rely upon all actions taken or omitted to be taken by the Representative hereunder or in connection with this Agreement. All decisions, actions, consents and instructions of the Representative authorized to be made, taken or given pursuant to this Section 10.21(c) shall be final and binding upon all the Existing Holders, and no liability Existing Holder shall have any right to the Company Securityholders object, dissent, protest or otherwise arising out of contest the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreementsame.
(gd) After At the Closing, Buyer Parent shall afford deliver to the Representative the Representative Expense Fund, to be held to cover and its accountantsreimburse the fees, counsel expenses and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries monetary obligations incurred in connection therewith will be promptly reimbursed by the Representative (on behalf in connection with the carrying out by the Representative of the Company Securityholders).
(h) its duties under this Agreement. The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for for, any third party expenses incurred expenses, charges or liabilities pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Groupany agreements ancillary hereto. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders Existing Holders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence fraud or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. .
(e) As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining (or will cause to be delivered) the balance of the Representative Expense Fund to the Paying Agent for further distribution Existing Holders the portion of the balance of the Representative Expense Fund such holder is entitled to receive. In the event that any amount is owed to the Company Securityholders Representative, whether for fees, expense reimbursement or indemnification, that is in accordance excess of the amounts remaining in the Representative’s Expense Fund, the Representative shall be entitled to be reimbursed by the Existing Holders on a pro rata basis (consistent with their respective Pro Rata Shares. the allocation in the immediately preceding sentence), and the agreements ancillary heretoExisting Holders shall so reimburse the Representative; provided, that for the avoidance of doubt, the aggregate of the applicable pro rata shares of all of the Existing Holders shall in all cases sum to 100%. Upon written notice from the Representative to the Existing Holders as to any such owed amount, including a reasonably detailed description as to such owed amount, each Existing Holder shall promptly deliver to the Representative full payment of his, her or its pro rata share of such owed amount (determined on a basis consistent with the allocation in the first sentence of this Section 10.21(e)). For tax Tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders Existing Holders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Heico Corp)
Representative. (a) In order to efficiently administer The Representative is hereby irrevocably appointed as the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreementrepresentative, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)agent, proxy, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon for all the Closing, with Company Securityholders for all purposes under this Agreement including the full power and authority on the Company Securityholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in such connection herewith, (ii) to negotiate and settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Company Securityholder’s name Securityholders any funds received on behalf of the Company Securityholders under this Agreement or otherwise, (iv) to withhold any amounts received on behalf of the Company Securityholders pursuant to this Agreement, including the Representative Holdback Amount, or otherwise to satisfy any and all obligations or liabilities incurred by the Company Securityholders or the Representative in the performance of their duties hereunder, (v) to direct the distribution of funds, designate or engage a paying agent to distribute funds (including, the Closing Date Cash Merger Consideration, the Adjustment Amount payable in accordance with Section 3.6 (Post-Closing Merger Consideration Adjustment and Payments), the determination and distribution of the Performance Transaction Bonus payable as provided for herein, and funds from the Escrow Account and the Representative Holdback Amount), make or direct payments of funds from the Representative Holdback Amount, give receipts for funds, authorize deliveries to Parent of cash from the Escrow Account in satisfaction of claims asserted by Parent, and object to any claims by any Person against the Escrow Account, (vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Company Securityholders) and (vii) to take all other actions to be taken by or on such behalf of the Company Securityholder’s behalf for all purposes Securityholders in connection with this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The Company Securityholders, by approving this Agreement (whether by vote or by execution of a Letter of Transmittal), further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any agreements ancillary hereto Company Securityholder. All decisions and actions by the Representative shall be binding upon all of the Company Securityholders and no Company Securityholder shall have the right to object, dissent, protest or otherwise contest the same. If an allocation is not otherwise provided for in this Agreement, the Representative shall distribute funds to the Company Securityholders in accordance with their respective Pro Rata Share. Parent may conclusively rely, without independent verification or investigation, upon any such decision or action of the Representative as being the binding decision or action of every Company Securityholder, and Parent shall not be liable to any Company Securityholder or any other Persons for any actions taken or omitted from being taken by them or by Parent in accordance with or reliance upon any such decision or action of the Representative. The Representative shall act by a majority in interest of Oak Hill Capital Partners III, L.P. and Oak Hill Capital Management Partners III, L.P. The Representative shall have no duties or obligations to the Company Securityholders hereunder, except as expressly set forth in this Agreement.
(b) By the approval of this Agreement, each Company Securityholder hereby severally, for itself only and not jointly and up to its Pro Rata Share, agrees to indemnify and hold harmless the Representative and its partners, managers, officers, agents and other representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by such Persons in connection with any action, suit or proceeding to (A) act according which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement and the Escrow Agreement in the absolute discretion Agreement, other than as a result of the Representative’s bad faith or willful misconduct.
(c) Neither the Representative nor any of its members, (B) represent such managers, officers, agents or other representatives shall incur any liability to any Company Securityholder by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting bad faith or willful misconduct. The Representative and its members, managers, officers, agents and other representatives and their respective Affiliates shall have no liability in respect of any Proceeding brought against such Persons by any Company Securityholder, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, unless such Persons took or omitted taking any action in bad faith or as result of willful misconduct.
(d) The Representative shall have the right, in its sole discretion, to recover from any amounts withheld by the Representative, including without limitation, the Representative Holdback Amount, its reasonable out-of-pocket expenses incurred in the performance of its duties hereunder (the “Charges”). In the event such amounts are insufficient to satisfy the Charges, then the Representative may direct the Escrow Agent to pay to the Representative such deficit from the Escrow Amount. In event the Escrow Amount is insufficient to satisfy such deficit, each Company Securityholder will be obligated to pay any remaining unpaid amounts to the Representative on a several, and not joint, basis, up to each such Company Securityholder’s successors Pro Rata Share.
(e) In furtherance of, and without limiting any rights of the Representative set forth in, Sections 10.15(a)(iv), 10.15(a)(v) and 10.15(d), the Representative shall have the right and the Company Securityholders hereby authorize the Representative, to withhold from the Closing Date Merger Consideration the Representative Holdback Amount (in connection with respect the allocation and distribution of the Closing Date Merger Consideration in accordance with Article III (Merger Consideration; Conversion of Securities; Exchange of Certificates)) to all matters arising satisfy potential future obligations of the Company Securityholders and expenses incurred by the Representative in connection with performing its obligations under this Agreement and the Escrow Agreement. The Representative Holdback Amount shall be retained by the Representative until such time as the Representative shall determine, (C) receive all notices and service and, subject to the terms of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations balance of the Representative in any ancillary agreementHoldback Amount, scheduleif any, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken shall be delivered by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received paying agent designated by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time Securityholders as if such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed were being distributed pursuant to the foregoing within twenty Section 3.7(a)(i) (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documentsPositive Adjustment Amount), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund Holdback Amount and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith Holdback Amount other than as a result of its gross negligence bad faith or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses Holdback Amount shall be held in an FDIC-insured account or any other corporate purposes and will not voluntarily make these funds available to its creditors in accounts at a nationally recognized financial institution.
(f) In the event of bankruptcy. As soon that the Representative becomes unable or unwilling to continue in its capacity as practicable following Representative, or if the completion of Representative resigns as the Representative’s responsibilities, the Representative will deliver any remaining a majority-in-interest of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Sharesmay by written consent appoint a new representative as the Representative. Notice and a copy of the agreements ancillary hereto. For tax purposes, written consent appointing such new representative and bearing the Representative Expense Fund will be treated as having been received and voluntarily set aside by signatures of a majority-in-interest of the Company Securityholders at must be delivered to Parent. Such appointment will be effective upon the time later of Closingthe date indicated in the consent or the date such consent is received by Parent.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Effective upon and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval Member Approval, and without any further act of any of the Members, Optionholders or Warrantholders, the Representative is hereby irrevocably appointed as the representative, agent, proxy, and attorney in fact (coupled with an interest) for all the Members, Optionholders and Warrantholders for all purposes under this Agreement including the full power and authority on the Members’, Optionholders’ and Warrantholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the Acquisition other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and no act disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (iii) to receive and disburse to, or caused to be received or disbursed to, any Member, Optionholder or Warrantholder any funds received on behalf of such Company Securityholder)Member, and Optionholder or Warrantholder under this Agreement (including, for the consummation avoidance of doubt, any portion of the Acquisition Merger Consideration) or participating otherwise, (iv) to withhold any amounts received on behalf of any Member, Optionholder or Warrantholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Members, Optionholders and Warrantholders) any and all obligations or liabilities of any Member, Optionholder, Warrantholder or the Representative in the Acquisition performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Members, Optionholders and receiving the benefits thereof, including the right to receive the consideration payable Warrantholders) in connection with the Acquisitionadjustment of Closing Cash Proceeds contemplated by Section 3.03), each Company Securityholder appoints (v) to execute and deliver any amendment or waiver to this Agreement and the Representative other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Member, Optionholder or Warrantholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as its exclusive agent for such Company Securityholder of the Closing and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing(vii) to take all other actions to be taken by or on behalf of any Member, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes Optionholder or Warrantholder in connection with this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Member and Optionholder. All decisions and actions by the Representative shall be binding upon each Member and Optionholder, and no Member, Optionholder or Warrantholder shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall have no duties or obligations hereunder, including any agreements ancillary hereto fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement.
(b) Effective upon and by virtue of the Member Approval, and without any further act of any of the Members, Optionholders or Warrantholders, the Representative and its Non‑Recourse Parties shall be indemnified, held harmless and reimbursed by each Member, Optionholder and Warrantholder severally (based on each Member’s, Optionholders’ and Warrantholder’s Allocation Percentage), and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or incurred by the Representative and its Non‑Recourse Parties in connection with any claim, action, suit or proceeding to (A) act according which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Members, Optionholders and Warrantholders) in connection with the adjustment of Closing Cash Proceeds contemplated by Section 3.03). Any and all amounts paid or incurred by the Representative and its Non‑Recourse Parties in connection with any claim, action, suit or proceeding to which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement are on behalf of the Members, Optionholders and Warrantholders (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Member or otherwise).
(c) Neither the Representative nor any of its Non‑Recourse Parties shall incur any liability to any Member, Optionholder or Warrantholder by virtue of the failure or refusal of the Representative or any of its Non‑Recourse Parties for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder. The Representative and its Non‑Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Member, Optionholder or Warrantholder, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
(d) If the Representative pays or causes to be paid any amounts (on behalf of the Members, Optionholders and Warrantholders) in connection with any obligation or liability of a Member, Optionholder or Warrantholder in connection with the transactions contemplated hereby (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), any such payments and the Escrow Agreement in the absolute discretion reasonable expenses of the RepresentativeRepresentative incurred in administering or defending the underlying dispute or claim may be reimbursed, when and as incurred, from the Representative Holdback Amount (Band, if not so reimbursed from the Representative Holdback Amount, the Representative shall be indemnified, held harmless and reimbursed by each Member, Optionholder and Warrantholder severally (based on each Member’s, Optionholder’s and Warrantholder’s Allocation Percentage), and not jointly, for such amount(s)). The Representative may, in its sole and absolute discretion, distribute, or caused to be distributed, any or all of the funds received or held by it on behalf of the Members, Optionholders and Warrantholders (including, for the avoidance of doubt, any portion of the Merger Consideration) represent to one or more Members, Optionholders or Warrantholders at any time after the date hereof, which such Company Securityholder and such Company Securityholder’s successors distribution(s) of funds may be different (i.e., with respect to amount, timing, conditionality or otherwise) for each Member, Optionholder and Warrantholder. Upon full reimbursement of all matters arising under this Agreement expenses, costs, obligations or liabilities incurred by the Representative in the performance of its duties hereunder, the Representative shall distribute, or caused to be distributed, all remaining funds held by it on behalf of the Members, Optionholders and Warrantholders to the Escrow AgreementMembers, (C) Optionholders and Warrantholders; provided, that to ensure compliance with Treasury Regulation 1.409A‑3(i)(5)(iv), the Optionholders shall not be entitled to receive all notices any payment, and service of process; and (D) in general no payment shall be made to do all things and to perform all actsthe Optionholders, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreementthe transaction contemplated hereby later than the date which is five (5) years after the Closing Date (it being understood that other Members may receive payments after the date which is five (5) years after the Closing Date, including, for the Escrow Agreement or avoidance of doubt, amounts that, if paid prior to the Representative Engagement Agreementdate which is five (5) years after the Closing Date, would have been paid to the Optionholders). Notwithstanding the foregoing, any amounts payable to the Members, Optionholders and Warrantholders in respect of this Section 12.13(d) shall be reduced by the respective amount owed to LVP under the Lightspeed Purchase Agreement. In the event that the Representative or its Affiliates becomes subject to any liability or other obligation, or is required to make any payment in connection with the transactions contemplated by the Merger Agreement, then the Representative shall have no obligation send each Member, Optionholder and Warrantholder a notice setting forth (i) the amount of such Member’s, Optionholder’s or Warrantholder’s proportionate share of such liability or obligation, and (ii) instructions for remittance of such amount to act on behalf of the Company Securityholders, except as expressly provided Representative.
(e) Notwithstanding anything to the contrary set forth herein, in the Escrow Agreement and in the Representative Engagement Agreementand its Affiliates shall not be liable for any loss to any Member, and Optionholder or Warrantholder for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit action taken or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions not taken by the Representative under this Agreementor for any act or omission taken or not taken in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by the Escrow Agreement, Purchaser or the Merger Sub or the Surviving Entity.
(f) Except as may have been expressly and specifically agreed to in writing by a Member, Optionholder or Warrantholder, on the one hand, and ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, on the other hand, and except for the Representative Engagement Agreement and its Affiliates (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP has not and is not representing, and shall not be deemed to have represented any Member, Optionholder or Warrantholder in connection with the transactions contemplated hereby, and (ii) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP has not and is not providing any advice or counsel (including legal advice or counsel), and shall not be deemed to have provided counsel or advice, to any Member, Optionholder or Warrantholder in connection with the transactions contemplated hereby. Each Member, Optionholder and Warrantholder agrees that ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP may represent the Representative and its Affiliates in any matter related to the transaction completed hereby including matters which maybe adverse to such Member, Optionholder or Warrantholder and, in furtherance thereof, each Member, Optionholder and Warrantholder consents to, and waives, without limitation, restriction or condition of any kind, any actual or potential conflict or other actual or potential objection with respect to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP’s representation of the Representative and its Affiliates in any matter related to the transaction completed hereby.
(g) The Purchaser shall be entitled to deal exclusively with the Representative (or any replacement thereof) on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Member, Optionholder or Warrantholder by the Representative, and on any other action taken or purported to be taken on behalf of any Member, Optionholder or Warrantholder by the Representative, as being fully binding upon such Company Securityholder Person. Notices or communications to or from the Representative shall constitute notice to or from each of the Members, Optionholders and such Company Securityholder’s successors as if expressly confirmed Warrantholders. Any decision or action by the Representative hereunder, including any agreement between the Representative and ratified in writing by such Company Securityholderthe Purchaser relating to the defense, and all defenses which may be available to payment or settlement of any Company Securityholder to contestclaims hereunder, negate shall constitute a decision or disaffirm the action of all Members, Optionholders and Warrantholders and shall be final, binding and conclusive upon each such Person. No Member, Optionholder or Warrantholder shall have the Representative taken in good faith under this Agreementright to object to, dissent from, protest or otherwise contest the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) same. The power provisions of attorney and all authority conferred under this Section 2.5 are independent and the powersseverable, immunities are irrevocable and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable coupled with an interest and shall not be terminated by any act of any Company Securityholderone or Members, Optionholders or Warrantholders, or by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementLaw.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order The Stockholders have irrevocably appointed the Representative as the representative, agent, proxy, and attorney in fact for all the Stockholders for all purposes under this Agreement including the full power and authority to efficiently administer act on the obligations specified in Stockholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and efficiently represent the interests other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including pursuant to Section 4.2); (ii) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including pursuant to Section 4.2); (iii) to receive and disburse to the Stockholders any funds received on behalf of the Company Securityholders with respect to all matters arising Stockholders under this Agreement or the Escrow Agreement, by virtue otherwise; (iv) to withhold any amounts received on behalf of the approval Stockholders to this Agreement or otherwise to satisfy any and all obligations or liabilities incurred by the Stockholders or the Representative in the performance of their duties hereunder; (v) to execute and deliver any amendment or waiver to this Agreement and the Acquisition (and no act of such Company Securityholder)other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the consummation prior approval of the Acquisition Stockholders); and (vi) to take all other actions to be taken by or participating in on behalf of the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes Stockholders in connection with this Agreement and any agreements ancillary hereto (including pursuant to (ASection 3.4) act according to the terms of this Agreement and the Escrow Agreement other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The agency and proxy granted by the absolute discretion Stockholders are coupled with an interest, are therefore irrevocable without the consent of the RepresentativeRepresentative and shall survive the death, (B) represent such Company Securityholder incapacity, bankruptcy, dissolution or liquidation of any Stockholder. All decisions and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated actions by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreementshall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, the The Representative shall have no obligation to act on behalf of the Company Securityholdersduties or obligations hereunder, including any fiduciary duties, except as expressly provided those set forth herein, in and such duties and obligations shall be determined solely by the Escrow Agreement and in express provisions of this Agreement. The power of attorney granted by each Stockholder to the Representative Engagement Agreement, is coupled with an interest and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit is irrevocable and shall not terminate or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken otherwise be affected by the Representative under this Agreementdeath, the Escrow Agreementdisability, incompetence, bankruptcy or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to insolvency of any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedStockholder.
(b) The power of attorney Representative hereby represents and all authority conferred under this Section 2.5 warrants to Parent and Merger Sub that the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations appointment of the Representative under this Agreement or by the Escrow Agreement Stockholders and the authority to which it is a party and shall take any and all actions which act on the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on Stockholders’ behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9Section 11.10(a): has been duly and validly authorized by all requisite action, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based proceedings on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal part of the Representative or the termination of this Agreement.
Stockholders is necessary to authorize such appointment or action, and (eb) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if will not: (i) conflict with or violate the Representative resigns or otherwise is unable to perform its obligations as such, and governing documents of the Representative; (ii) no successor Representative is appointed pursuant conflict with or violate any Law applicable to the foregoing within twenty Representative; or (20iii) daysconflict with, thenresult in any breach of, without give rise to a right of termination, cause the forfeiture of any further action right, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any notice or consent by of any PersonPerson pursuant to, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or violate any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by Contract binding upon the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by By virtue of the approval of the First Step Merger, this Agreement and the Acquisition (and no act of such transactions contemplated hereby by the Company Securityholder)Stockholders, and by the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereofof the First Step Merger, including the right to receive the consideration payable in connection with the AcquisitionFirst Step Merger, each of the Company Securityholder appoints the Stockholders shall be deemed to have agreed, and hereby agrees, to appoint Shareholder Representative Services LLC as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon fact, as the Closing, with full power and authority in such Company Securityholder’s name Representative for and on such behalf of the Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including Stockholders to (Ai) act according to the terms of this Agreement give and the Escrow Agreement in the absolute discretion of the Representativereceive notices and communications, (Bii) represent authorize payment to any Indemnified Party from the Indemnity Escrow Fund in satisfaction of claims by such Company Securityholder Indemnified Party pursuant to Section 8.2(a), (iii) object to such payments, (iv) agree to, negotiate, enter into settlements and such Company Securityholder’s successors compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to all matters arising under this Agreement and the Escrow Agreementsuch claims, (Cv) receive all notices assert, negotiate, enter into settlements and service compromises of, and demand arbitration and comply with orders of process; courts and (D) awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Stockholder or by any such Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Stockholder, in general each case relating to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby, (vi) authorize the release or delivery to the Representative Engagement of amounts from the Representative Escrow Fund in satisfaction or payment of any Representative Expenses (as defined in Section 8.8(b) below), and (vii) to take all other actions that are either (A) necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, including taking such action as necessary to transfer any shares of Parent Common Stock held in the Indemnity Escrow Fund to any Indemnified Party or other Person as required under this Agreement or the Escrow Agreement, or (B) specifically mandated by the terms of this Agreement or the Escrow Agreement. The identity of the Representative may be changed by the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Representative may not be removed unless holders of at least a majority of the interest of the Indemnity Escrow Fund agrees in writing to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, if the Representative shall have no obligation die, be removed, become disabled, resign or otherwise be unable to act on behalf fulfill its responsibilities hereunder, a vacancy in the position of Representative may be filled by the holders of a majority in interest of the Indemnity Escrow Fund. Notices or communications to or from the Representative shall constitute notice to or from the Company Stockholders. A decision, act, consent or instruction of the Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.4 and Section 9.5 hereof, shall constitute a decision of the Company SecurityholdersStockholders and shall be final, except as expressly provided herein, in binding and conclusive upon the Company Stockholders; and each of the Escrow Agreement Agent and in the Representative Engagement AgreementParent may rely upon any such decision, and for purposes of clarityact, there are no obligations consent or instruction of the Representative as being the decision, act, consent or instruction of the Company Stockholders. Each of the Escrow Agent and Parent is hereby relieved from any liability to any person for any acts done by them in any ancillary agreementaccordance with such decision, scheduleact, exhibit consent or instruction of the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company SecurityholderRepresentative. Each Company Securityholders agreesStockholder hereby agrees to receive correspondence from the Representative, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified including in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedelectronic form.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by liable for any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death done or disability or any other event omitted hereunder as Representative while acting in good faith and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amountexercise of reasonable judgment. Without limiting Any act done or omitted pursuant to the foregoing, the power advice of attorney counsel shall be to ensure conclusive evidence that the performance Representative acted in good faith and in the exercise of a special obligation andreasonable judgment. The Company Stockholders shall indemnify the Representative and hold the Representative harmless against any loss, accordingly, each Company Securityholder, by virtue of liability or expense incurred without gross negligence or bad faith on the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations part of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the acceptance or administration of the Representative’s execution duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative, and any fees and expenses incurred by the Representative in connection with the performance of his duties under this Agreement or the Escrow Agreement (“Representative Expenses”). If not paid directly by the Company Stockholders, any Representative Expenses may be (i) withdrawn by the Representative from the Representative Escrow Fund, or (ii) following the Expiration Date and the satisfaction of all claims made by Indemnified Parties for Losses, recovered from the Escrow Fund prior to any agreements ancillary heretodistribution to the Company Stockholders; provided that prior to any such distribution pursuant to clause (ii) of this sentence, in each case as such the Representative Loss is suffered or incurredshall deliver to the Escrow Agent a certificate setting forth the Representative Expenses actually incurred and not previously satisfied from the Representative Escrow Fund; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by while this section allows the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by paid from the Representative Group from (i) first, the funds in the Representative Expense Escrow Fund, (ii) second, from any distributions of the Escrow Fund to it does not relieve the Company Shareholders Stockholders from their obligation to promptly pay such losses, liabilities or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholdersexpenses, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not nor does it prevent the Representative Group from seeking any remedies available to them it at law or otherwise against the otherwise.
(c) The Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided deliver to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal a copy of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and Information Statement; (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), Spreadsheet; and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (yiii) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)Company’s Closing Working Capital Statement.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Harmonic Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests As an integral component of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval terms and conditions of this Agreement and the Acquisition (Merger, the Representative is hereby irrevocably appointed, authorized and no act of such Company Securityholder), and empowered as the consummation representative of the Acquisition or participating Equityholders, Blocker Seller and their respective successors and permitted assigns for the purposes specified in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement and all actions taken by the Representative hereunder and thereunder will be binding upon all such Equityholders, Blocker Seller and their respective successors. The Representative may take any and all actions which it believes are necessary or appropriate in connection with the absolute discretion purposes for which it serves as the Representative as specified in this Agreement and the Escrow Agreement for and on behalf of the RepresentativeEquityholders and Blocker Seller, including, without limitation, approving or contesting the determination of the Total Equity Value and the Blocker Adjustment (Bor any elements thereof) represent pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8, consenting to, compromising or settling all claims and matters in connection with such Company Securityholder determination or distributions, conducting negotiations with Parent and other applicable counterparties and their agents regarding claims and matters in connection with such Company Securityholder’s successors determination or distributions, dealing with respect to all matters arising Parent, the Surviving Entity and its Subsidiaries, and the Escrow Agent, under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all actsas applicable, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreementsuch determination or distributions, the Escrow Agreement and engaging counsel, accountants or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act other representatives on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement Equityholders and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants Blocker Seller in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative will have full power and authority on behalf of the Equityholders and Blocker Seller to interpret all of the terms and provisions of this Agreement and the Escrow Agreement in connection with the determination of the Total Equity Value and the Blocker Adjustment (or any elements thereof) pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8 and to consent to any amendment hereof or thereof on behalf waiver of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records or any amendment of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the RepresentativeEscrow Agreement, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (case on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement all such Equityholders and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity Blocker Seller and their respective successors and permitted assigns in connection with the Representative Expense Amountdetermination of the Total Equity Value and the Blocker Adjustment (or any elements thereof) pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8; provided that, and has no tax reporting notwithstanding the foregoing, this Agreement may only be amended or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had modified in any such interest or earningsaccordance with Section 15.2. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closinghereby accepts such appointment.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the The Stockholders Representative shall have no obligation to act on behalf of be the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of for each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of Stockholders and the Optionholders under this Agreement and the Acquisition (and no act other agreements contemplated hereby in accordance with the terms of such Company Securityholder)this Section 10.11. In the event of the resignation, that all actions taken death or incapacity of the Stockholders Representative, a successor Stockholder Representative reasonably satisfactory to Parent shall thereafter be appointed by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder an instrument in writing signed by Parent and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedsuccessor Stockholders Representative.
(b) The Stockholders Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders and the Optionholders (with full power of attorney substitution in the premises) in connection with such matters as are reasonably necessary for the consummation and all authority conferred under administration of the transactions contemplated in this Section 2.5 Agreement, the Indemnity Escrow Agreement and the powersother agreements contemplated hereby and thereby including executing and delivering all agreements, immunities amendments, certificates, receipts, consents, elections, instructions and rights other documents contemplated by, or deemed by the Stockholders Representative to indemnification granted be necessary or desirable in connection with, this Agreement, the Indemnity Escrow Agreement, the other agreements contemplated hereby and thereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be entitled to rely on such appointment and to treat the Stockholders Representative as the duly appointed attorney-in-fact of each Stockholder and Optionholder. Notices given to the Stockholders Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive in accordance with the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval provisions of this Agreement shall constitute notice to the Stockholders and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of Optionholders for all payment obligations purposes under this Agreement.
(c) The Representative agrees to be bound by all obligations appointment of the Stockholders Representative under is an agency coupled with an interest and is irrevocable and any action taken by the Stockholders Representative pursuant to the authority granted in this Agreement Section 10.11 shall be effective and absolutely binding on each Stockholder and Optionholder notwithstanding any contrary action of or direction from such Stockholder or Optionholder, except for actions or omissions of the Escrow Agreement to which it is a party and shall take any and all actions which the Stockholders Representative believes are necessary constituting willful misconduct or appropriate under this Agreement, the Escrow Agreementgross negligence. The death or incapacity, or dissolution or other termination of existence, of any Stockholder or Optionholder shall not terminate the Representative Engagement Agreement (including entering into any amendment of same) for authority and on behalf agency of the Company SecurityholdersStockholders Representative. Parent, including defending all indemnity claims pursuant Merger Sub and any other party to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or document contemplated by this Agreement in dealing with the Stockholders Representative may conclusively and absolutely rely, without inquiry, upon any act of the Stockholders Representative as the act of the Stockholder or Optionholder.
(d) The Stockholders Representative shall not be liable to any Stockholder, Optionholder or to any other Person (other than Parent or Merger Sub), with respect to any action taken or omitted to be taken by the Escrow Agreement and engaging counsel and accountants Stockholders Representative in its role as Stockholders Representative under or in connection with this Agreement, unless such action or omission results from or arises out of willful misconduct or gross negligence on the foregoing matters. Without limiting the generality part of the foregoingStockholders Representative, and the Stockholders Representative shall not be liable to any Stockholder or Optionholder in the event that, in the exercise of his or its reasonable judgment, the Stockholders Representative believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by virtue Parent or Merger Sub.
(e) The Stockholders Representative may act pursuant to the advice of the approval of counsel with respect to any matter relating to this Agreement and the Acquisition (and no act of shall not be liable for any action taken or omitted by it in good faith in accordance with such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsadvice. The Stockholders Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) to rely upon any Order, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. The Stockholders Representative may act in reliance upon any instrument or signature believed by it to be genuine, genuine and (iii) reasonably may assume that a signatory has proper authorization the Person purporting to sign on behalf of the applicable Company Securityholder give receipt or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor advice or make any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur statement or execute any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative document in connection with the Representative’s services pursuant provisions hereof has been duly authorized to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from do so. The Stockholders Representative may conclusively presume that the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act undersigned representative of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally party hereto which is an entity other than a natural person has full power and not jointly, by each Company Securityholder will indemnify, defend and hold harmless authority to instruct the Stockholders Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action that party unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement written notice to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable contrary is delivered to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Stockholders Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of The Stockholders Representative or any disputes with Representative. Buyer may rely entirely on its dealings withshall receive reimbursement from, and notices to and be indemnified from, the Representative to satisfy Indemnity Escrow Account, for any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closingand all expenses, Buyer shall afford the Representative charges and its accountantsliabilities, counsel and other representativesincluding reasonable attorneys’ fees, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified incurred by the Representative, Stockholders Representative in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations performance or discharge of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred duties pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingSection 10.11.
Appears in 1 contract
Sources: Merger Agreement (Aleris Corp)
Representative. (a) In order Each THL Entities hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to efficiently administer have so designated and appointed) each of Anthony J. DiNovi, Scott Sperling and Kent Weldon, as his attorney-in-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇we▇ ▇▇ ▇▇▇▇▇▇▇▇▇ion f▇▇ ▇▇▇▇ ▇▇ them (the obligations specified in "THL Entities' Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and efficiently represent hereby acknowledges that the interests THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Represen- tative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company Securityholders with respect and to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement each Non-THL Shareholder.
(b) Each DLJ Entities hereby designates and the Acquisition appoints (and no act each Permitted Transferee of each such Company Securityholder)DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereofInc., including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful his attorney-in-fact effective upon the Closing, with full power and authority in of substitution for each of them (the "DLJ Entities' Representative"), to serve as the representative of each such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and person to perform all actssuch acts (other than voting of shares of Common Stock) as are required, including executing and delivering any agreements, certificates, receipts, instructions, notices authorized or instruments contemplated by or deemed advisable in connection with this Agreement, Agreement to be performed by such person and hereby acknowledges that the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the DLJ Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have no obligation authorized) the other parties hereto to act disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on behalf any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company Securityholdersand to each other DLJ Entity Shareholder.
(c) Each Merrill Lynch Entities hereby designates and appoints (and each Permit▇▇▇ ▇▇▇n▇▇▇▇▇e of each such Merrill Lynch Entities is hereby deemed to have so designated and appo▇▇▇▇▇) K▇▇▇▇▇ Inc., except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and his attorney-in-fact with full power of substitution for each Company Securityholder. Each Company Securityholders agrees, by virtue of them (the approval of this Agreement and the Acquisition (and no act of such Company Securityholder"Merrill Lynch Entities Representative"), that all actions taken by to serve as the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available representativ▇ ▇▇ ▇▇c▇ ▇▇▇h person to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling perform all such indemnity claimsacts as are required, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in authorized or contemplated by this Agreement or to be performed by such person and hereby acknowledges that the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Merrill Lynch Entities Representative shall be entitled to: (i) rely upon the Payment Spreadsheetonly person authori▇▇▇ ▇▇ t▇▇▇ ▇ny action so required, (ii) rely upon any signature believed authorized or contem plated by it this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be genuine, coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (iiiand each such Permitted Transferee shall be deemed to have authorized) reasonably assume that a signatory has proper authorization the other parties hereby to sign on behalf of the applicable Company Securityholder disregard any notice or other partyaction taken by such person pursuant to this Agreement except for the Merrill Lynch Entities Representative. The other parties hereto are an▇ ▇▇▇▇ b▇ ▇▇▇itled to rely on any action so taken or any notice given by the Merrill Lynch Entities Representative and are and will be entitled and ▇▇▇▇▇▇i▇▇▇ ▇o give notices only to the Merrill Lynch Entities Representative for any notice contemplated by t▇▇▇ ▇▇▇e▇▇▇▇▇ to be given to any such person. A successor to the Merrill Lynch Entities Representative may be chosen by a majority in i▇▇▇▇▇▇▇ ▇▇ ▇▇e Merrill Lynch Entities' Shareholders, provided that notice thereof is ▇▇▇▇▇ ▇y ▇▇▇ new Merrill Lynch Entities Representative to the Company and to each other ▇▇▇▇▇▇l ▇▇▇▇h Entity Shareholder.
(d) Certain Company Securityholders Each Management Shareholde▇ ▇▇▇▇▇y ▇▇▇▇gnates and appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have entered into an engagement agreement so designated and appointed) Paul M. Meister, as his attorney-in-fact with full power of substituti▇▇ ▇▇▇ ▇▇▇▇ ▇▇ them (the Representative "Management Representa- tive"), to provide direction serve as the representative of each such person to the Representative in connection with its services under perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided hereby acknowledges that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Management Representative shall not be required the only person authorized to take any action unless the Representative has been provided with fundsso required, security authorized or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred contemplated by the Representative in performing such actions. Notwithstanding anything in this Agreement to by each such person. Each such person further acknowledges that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended foregoing appointment and designation shall be deemed to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer coupled with an interest and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation death or removal incapacity of the Representative or any member of the Advisory Group such person. Each such person hereby authorizes (and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will each such Permitted Transferee shall be deemed to have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (yauthorized) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed other parties hereby to disregard any notice or other action taken by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred such person pursuant to this Agreement except for the Management Representative. The other parties hereto are and the Related Agreements, will be entitled to rely on any action so taken or (ii) as otherwise determined any notice given by the Advisory Group. The Management Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders are and will not receive any interest or earnings on the Representative Expense Fund be entitled and irrevocably transfer and assign authorized to give notices only to the Management Representative for any ownership right that they may otherwise have had in notice contemplated by this Agreement to be given to any such person. A successor to the Management Representative may be chosen by a majority in interest or earnings. The Representative will not be liable for any loss of principal of the Management Shareholders, provided that notice thereof is given by the new Management Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingto each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. The Sellers hereby irrevocably designate and appoint ▇▇▇▇▇ ▇▇▇▇▇▇ (athe “Representative”) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact for the Sellers and the Representative is authorized and empowered to act, for and on behalf of each Company Securityholder. Each Company Securityholders agrees, by virtue any or all of the approval Sellers (with full power of substitution in the premises), in connection with the indemnity provisions of this Section 7 as they relate to the Sellers generally, the Adjustment Amount, the Revenue Adjustment, the Holdback Amount, the notice provision of this Agreement and such other matters as are reasonably necessary for the Acquisition consummation of the transactions contemplated in this Agreement, including, without limitation, to act as the representative of Sellers to review and authorize all set-offs, claims and other payments authorized or directed by this Section 7 and dispute or question the accuracy thereof, to compromise on their behalf with Buyer any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement. In the event that the person serving as Representative dies or becomes disabled or resigns (and no act of such Company Securityholderby written notice to the parties), that all actions a replacement shall be designated within ten (10) days by those Sellers receiving a majority of the Purchase Price. The Representative shall not be liable, in his capacity as representative of the Sellers, to any Seller and their respective affiliates with respect to any action taken or omitted to be taken by the Representative under or in connection with this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors in his capacity as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action representative of the Sellers unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. The Sellers acknowledge and agrees that Representative taken in good faith under this Agreementwill be an employee of the Company after the Closing. Each Seller who receives any portion of the Purchase Price, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney by acceptance thereof and all without any further action, confirms such appointment and authority conferred under this Section 2.5 and the powers, immunities acknowledges and rights to indemnification granted to the Representative Group hereunder: (i) shall be agrees that such appointment is irrevocable and shall not be terminated by any act coupled with an interest, it being understood that the willingness of any Company SecurityholderBuyer to enter into this Agreement is based, by operation of lawin part, by such Company Securityholder’s death or disability or any other event and (ii) shall survive on the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance appointment of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no representative to act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partySellers.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition Each Seller hereby (and no act of such Company Securityholder), and each other Seller Party pursuant to the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder Required Documentation shall thereby) appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes of the Seller Parties to give and receive notices and communications in connection with this Agreement and any agreements ancillary hereto including the transactions contemplated hereby, to (A) act according authorize and agree to adjustments to the terms Buyer Shares, the Cash Consideration, the Option Consideration, the Warrant Shares, the Earnout Shares and the Earnout Funds under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the Escrow Shares, the Escrow Funds, the Adjustment Shares and the Adjustment Funds, to take all actions on behalf of the Seller Parties pursuant to this Agreement and the Escrow any Ancillary Agreement to which any Seller Party is a party, and to take all actions necessary or appropriate in the absolute discretion judgment of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and Representative for the Escrow Agreement, (C) receive all notices and service accomplishment of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing. More specifically, the Representative shall have no obligation the authority to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement make all decisions and in the Representative Engagement Agreement, determinations and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that take all actions taken by the Representative under this Agreement, the Escrow Agreement, (including giving Consents or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available agreeing to any Company Securityholder amendments to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow any Ancillary Agreement to which it is a party and shall take any and all actions which or to the Representative believes are necessary termination hereof or appropriate under this Agreement, the Escrow Agreement, thereof) required or the Representative Engagement Agreement (including entering into any amendment of same) for and permitted hereunder on behalf of each such Seller (or such other Seller Party), and any such action, decision or determination so made or taken shall be deemed the Company Securityholdersaction, including defending all indemnity claims decision or determination of each such Seller (or such other Seller Party), and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Seller Party hereunder or pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and any Ancillary Agreement shall be deemed so given if given to the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsRepresentative. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it authorized to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign take all actions on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative Seller Parties in connection with its services any claims made under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member Articles 6 or 7 of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct to defend or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on settle such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or to authorize payments in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount respect of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds claims on behalf of the Company Securityholders or otherwiseSeller Parties. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ upon 20 days prior notice. In the event the Representative has given notice of its intent to Buyer and the Company Securityholders; In such eventresign, the Seller Parties shall promptly (and no later than the effective date of the Representative’s resignation) appoint a successor Representative shall be selected by Representative, in accordance with the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closingfollowing sentence. If The Seller Parties may remove or replace the Representative is unable to perform his, her or its obligations under this Agreement or, in the case by a vote of a Representative holders that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least own a majority of the Company Ordinary Shares (on an as converted basis) as of Company’s capital stock immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if upon not less than ten (i10) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable Business Days’ prior written notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith . No bond will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion required of the Representative’s responsibilities, . Notices or communications to or from the Representative will deliver any remaining constitute notice to or from each of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingSeller Parties.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by By virtue of the approval of the Transactions and this Agreement by the Parent Holders and pursuant to the Parent Holder Agreements, each of the Parent Holders and the Acquisition Sellers (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreementcollectively, the Escrow Agreement “Seller Indemnifying Parties”) shall be deemed to have agreed to appoint Parent as his, her or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, its agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesfact, by virtue as the Representative for and on behalf of the approval of Seller Indemnifying Parties to take all actions under this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions are to be taken by the Representative under Representative, including to amend this Agreement, to waive any provision of this Agreement, to negotiate payments due pursuant to this Article 13, to give and receive notices and communications, to authorize payment to any Buyer Indemnified Party from the Escrow AgreementFund in satisfaction of claims by any Buyer Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Buyer Indemnified Party against any Seller Indemnifying Party or by any such Seller Indemnifying Party against any Buyer Indemnified Party or any dispute between any Buyer Indemnified Party and any such Seller Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, or (ii) specifically mandated by the terms of this Agreement; provided, however, that, notwithstanding the foregoing or anything to the contrary set forth herein, the powers conferred above shall not authorize or empower the Representative Engagement Agreement shall to do or cause to be binding upon done any of the foregoing (i) in a manner that improperly discriminates between or among the Seller Indemnifying Parties or (ii) as to any matter insofar as such Company Securityholder matter relates solely and exclusively to a single Seller Indemnifying Party, whereupon the Representative may appoint the Seller Indemnifying Party who is alleged to be in breach to handle all matters related to such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderindemnification claim on behalf of the Representative, and all defenses which references to the Representative in such event shall include also such Seller Indemnifying Party. Such agency may be available changed by the Parent Holders from time to any Company Securityholder time upon not less than thirty (30) days prior written notice to contestParent; provided, negate or disaffirm however, that the action Representative may not be removed unless Parent Holders holding an Indirect Ownership Interest (as set forth on Exhibit E) of at least 51% (a “Majority Interest”) agree to such removal and to the identity of the substituted agent. A vacancy in the position of Representative taken may be filled by a Majority Interest. In the event a vacancy in good faith under this Agreementthe position of Representative exists for fifteen (15) or more days, Parent shall have the Escrow Agreement or right to petition a court of competent jurisdiction to appoint a replacement Representative. No bond shall be required of the Representative, and the Representative Engagement Agreement are waivedshall not receive any compensation for his, her or its services. Notices or communications to or from the Representative shall constitute notice to or from the Seller Indemnifying Parties.
(b) The power of attorney Representative represents and all authority conferred under this Section 2.5 warrants to Parent and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: Escrow Agent that it has the irrevocable right, power and authority (i) shall be irrevocable to enter into and shall not be terminated by any act perform its obligations as Representative under this Agreement and to bind each of any Company Securityholderthe Indemnifying Parties to its terms, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole to give and receive directions and notices hereunder, and (iii) to make all determinations that may be required or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations that it deems appropriate under this Agreement.
(c) The Until notified in writing by the Representative agrees to be bound that he, she it has resigned, or that he, she or it has been removed by all obligations a Majority Interest, Parent and the Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreementnamed above and, the Escrow Agreementthereafter, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheetdirections, (ii) rely upon instructions and notices of any signature believed successor named in a writing executed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyMajority Interest.
(d) Certain Company Securityholders have entered into an engagement agreement with The Seller Indemnifying Parties each hereby authorize the Representative to:
(i) Receive all notices or documents given or to provide direction be given to the Representative Indemnifying Parties pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Representative may in its services sole discretion deem appropriate; and
(iii) Take such action as the Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Buyer or Acquisition Sub contained in this Agreement or in any document delivered by Buyer or Acquisition Sub pursuant hereto, (B) taking such other action as the Representative is authorized to take under this Agreement, (C) receiving all documents or certificates and making all determinations, in his, her or its capacity as Representative, required under this Agreement and (D) all such actions as may be necessary to carry out any of the Escrow Agreement (such Company Securityholderstransactions contemplated by this Agreement, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders defense and/or settlement of any kind with respect to any action or omission by the Representative in connection with the Representative’s services claims for which indemnification is sought pursuant to this Agreement, Article 13 and any agreements ancillary hereto waiver of any obligation of Buyer or Acquisition Sub.
(e) The Representative shall not be liable for any act done or omitted hereunder as Representative while acted acting in good faithfaith and in the exercise of reasonable judgment. The Seller Indemnifying Parties shall indemnify the Representative and hold the Representative harmless against any loss, except for liability directly resulting from or expense incurred without gross negligence or bad faith on the Representative’s willful misconduct or gross negligence. By virtue part of the approval of this Agreement Representative and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the acceptance or administration of the Representative’s execution duties hereunder, including the reasonable fees and performance expenses of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused legal counsel retained by the gross negligence Representative. A decision, act, consent or willful misconduct instruction of the Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties; and the Escrow Agent, Buyer and Acquisition Sub may rely upon any such decision, act, consent or instruction of the Representative will reimburse as being the Company Securityholders decision, act, consent or instruction of the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductSeller Indemnifying Parties. Such Representative Losses may be recovered by the Representative Group from (i) firstThe Escrow Agent, the funds in the Representative Expense Fund, (ii) second, Buyer and Acquisition Sub are hereby relieved from any distributions of the Escrow Fund liability to the Company Shareholders any Person for any decision, act, consent or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct instruction of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. The Stockholder is hereby appointed by the Company (a) In order to efficiently administer the obligations specified in and by execution of this Agreement and efficiently represent hereby accepts such appointment) as the interests representative of the recipients of the Merger Consideration (the “Representative”) to (i) receive that portion of the Merger Consideration set forth in Section 1.5(a) herein on behalf of the holders of the Company Securityholders with respect Common Stock, and (ii) take any and all actions and make any decisions required or permitted to all matters arising be taken by such recipients under this Agreement or the Escrow Agreement, by virtue . Execution of the approval Letter of Transmittal and acceptance by a holder of Company Certificates of the Merger Consideration to which such holder is entitled shall be deemed acceptance by such holder of the appointment of the Representative to act in such holder’s behalf. Should the Representative resign or be unable to serve, a new Representative will be selected jointly by a vote of the recipients who, at Closing, received a majority of the shares of Parent Common Stock in the Merger, whose appointment shall be effective upon execution by such successor of a joinder agreement providing for such successor to become a party to the Escrow Agreement and this Agreement and as the Acquisition (and no act of Representative, in which case such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf successor shall for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in be the absolute discretion Representative (and the prior acts taken by the succeeded Representative shall remain valid for purposes of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement). If such recipients are unable to appoint a Person to serve in the capacity of Representative within 30 days of the date that the former Representative resigned or became unable to serve, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the a new Representative shall have no obligation to act be selected by majority vote of those Persons on behalf Parent’s board of directors who served on the board of directors of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted immediately prior to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsEffective Time. The Representative shall not be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it liable to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf recipients of the applicable Company Securityholder Merger Consideration for any liability, loss, damage, penalty, fine, cost or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action expense incurred without gross negligence or omission willful misconduct by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted acting in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement faith and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution acceptance or administration of its duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). From and performance after the Effective Time, a decision, act, consent or instruction of this Agreement the Representative shall be final, binding and conclusive and not subject to challenge by any recipient. Parent and Surviving Corp are hereby relieved from any liability to any person for any acts done by Representative and any agreements ancillary hereto, acts done by Parent or Surviving Corp in each case as such Representative Loss is suffered or incurred; provided, that in the event that accordance with any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence decision, act, consent or willful misconduct instruction of the Representative. Parent, Surviving Corp and each of their respective Affiliates shall be entitled to rely upon, and shall be fully protected in relying upon, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, power and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal authority of the Representative or the termination of this Agreementwithout independent investigation.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Trio Merger Corp.)
Representative. For purposes of this Agreement, the Demi▇▇ ▇▇▇reholders, without any further act of any Demi▇▇ ▇▇▇reholder, shall be deemed to have consented to and approved (a) In order to efficiently administer the use of the Escrow Shares as collateral for Demi▇▇'▇ ▇▇▇ the Demi▇▇ ▇▇▇reholders' indemnification obligations specified under Section 10 of the Plan of Reorganization in the manner set forth in this Agreement, (b) the appointment of Robe▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ as the Representative of the Demi▇▇ ▇▇▇reholders under this Agreement and efficiently represent as the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on such Company Securityholder’s behalf for of each Demi▇▇ ▇▇▇reholder, and the taking by the Representative of any and all purposes in connection with actions and the making of any decisions required or permitted to be taken by him under this Agreement (including, without limitation, the exercise of the power to: authorize delivery to Worldtalk of Escrow Shares in satisfaction of claims by Worldtalk; agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; resolve any agreements ancillary hereto including claim made pursuant to Section 10 of the Plan of Reorganization; and take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing) and (Ac) all of the other terms, conditions and limitations in the Escrow Agreement. Accordingly, the Representative has unlimited authority and power to act according on behalf of each Demi▇▇ ▇▇▇reholder with respect to the terms of this Agreement and the Escrow Agreement in the absolute discretion disposition, settlement or other handling of the Representativeall claims, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters rights or obligations arising under this Agreement and the Escrow Agreement, (C) receive so long as all notices and service of process; and (D) Demi▇▇ ▇▇▇reholders are treated in general to do material respects in the same manner. The Demi▇▇ ▇▇▇reholders will be bound by all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated actions taken by or deemed advisable the Representative in connection with this Agreement, and Worldtalk and the Escrow Agreement Agent shall be entitled to rely on any action or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations decision of the Representative in any ancillary agreement, schedule, exhibit or as constituting the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing mattersDemi▇▇ ▇▇▇reholders. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of In performing such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representativefunctions, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative not be liable to the extent attributable to such Demi▇▇ ▇▇▇reholders in the absence of gross negligence or willful misconduct. Such Representative Losses may be recovered All actions and notices by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise hereunder shall be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused signed by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice from such position, effective upon a new Representative being appointed to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an act as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.the
Appears in 1 contract
Representative. Mich▇▇▇ ▇. ▇▇▇▇ ▇▇▇ll, by virtue of the Merger and the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the Shareholders (awith full power of substitution in the premises) In order in connection with the indemnity provisions of Article 11 as they relate to efficiently administer the obligations specified Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Compuware any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement and efficiently represent (the interests above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Company Securityholders shares Compuware Stock received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any Shareholders and their respective affiliates or any other person with respect to all matters arising any action taken or omitted to be taken by the Representative under or in connection with this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act in his capacity as representative of such Company Securityholder)Shareholders unless such action or omission results from or arises out of fraud, and gross negligence, willful misconduct or bad faith on the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion part of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement . Compuware and the Escrow Agreement, (C) receive all notices Surviving Corporations and service each of process; their respective affiliates shall be entitled to rely on such appointment and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the treat such Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and duly appointed attorney-in-fact of each Company SecurityholderShareholder. Each Company Securityholders agrees, by virtue Shareholder who votes in favor of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted Merger pursuant to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of lawterms hereof, by such Company Securityholder’s death or disability or vote, without any other event further action, and (ii) shall survive each Shareholder who receives any shares of Compuware Stock in connection with the delivery Merger, by acceptance thereof and without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of an assignment by any Company Securityholder of Compuware to enter into this Agreement is based, in part, on the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance appointment of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no representative to act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyShareholders.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests By virtue of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow AgreementRequired Stockholder Consent, by virtue of the approval of this Agreement and the Acquisition (and no act of such transactions contemplated hereby by the Company Securityholder)Stockholders, and the consummation each of the Acquisition or participating in Company Stockholders shall be deemed to have agreed to appoint H▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative “Representative”) as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon fact, as the Closing, with full power and authority in such Company Securityholder’s name Representative for and on such behalf of the Company Securityholder’s behalf for all purposes in connection with this Agreement Stockholders to give and receive notices and communications, to authorize payment to any agreements ancillary hereto including to (A) act according to the terms of this Agreement and Indemnified Party from the Escrow Agreement Fund in the absolute discretion satisfaction of the Representativeclaims by such Indemnified Party pursuant to Section 7.2(a), (B) represent to object to such Company Securityholder payments, to agree to, negotiate, enter into settlements and such Company Securityholder’s successors compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to all matters arising under this Agreement such claims, to assert, negotiate, enter into settlements and the Escrow Agreementcompromises of, (C) receive all notices and service demand arbitration and comply with orders of process; courts and (D) awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Stockholder or by any such Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Stockholder, in general each case relating to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Representative Engagement for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. The identity of the Representative may be changed by the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, however, that the Representative may not be removed unless holders of at least two-thirds of the interest of the Escrow Fund agrees in writing to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Representative may be filled by the holders of a majority in interest of the Escrow Fund. Notices or communications to or from the Representative shall have no obligation constitute notice to act on behalf or from the Company Stockholders. A decision, act, consent or instruction of the Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Company SecurityholdersStockholders and shall be final, except as expressly provided herein, in binding and conclusive upon the Company Stockholders; and each of the Escrow Agreement Agent and in the Representative Engagement AgreementPurchaser may rely upon any such decision, and for purposes of clarityact, there are no obligations consent or instruction of the Representative in any ancillary agreementas being the decision, scheduleact, exhibit consent or instruction of the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company SecurityholderStockholders. Each Company Securityholders agrees, by virtue of the approval of this Agreement Escrow Agent and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available Purchaser is hereby relieved from any liability to any Company Securityholder to contestperson for any acts done by them in accordance with such decision, negate act, consent or disaffirm the action instruction of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedRepresentative.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by liable for any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death done or disability or any other event omitted hereunder as Representative while acting in good faith and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amountexercise of reasonable judgment. Without limiting The Company Stockholders shall indemnify the foregoingRepresentative and hold the Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations part of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative’s duties hereunder, including the Representative will reimburse the Company Securityholders the amount reasonable fees and expenses of such indemnified Representative Loss received any legal counsel retained by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take and any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, fees and expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance connection with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal performance of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have his duties under this Agreement or the Escrow Agreement.
Agreement (g) After “Representative Expenses”). Following the ClosingExpiration Date and the satisfaction of all claims made by Indemnified Parties for Losses, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable shall have the right to recover Representative Expenses from the Escrow Fund prior notice to any distribution to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents)Stockholders, and (ii) all Company personnel as reasonably identified by prior to any such distribution, shall deliver to Purchaser and the Representative, in each case, to Escrow Agent a certificate setting forth the extent reasonably related to such claims under the Claim NoticeRepresentative Expenses actually incurred; provided, howeverthat, that the Escrow Agent shall release up to One Hundred Thousand Dollars (x$100,000) access to the Representative from the Escrow Fund at any time, upon receipt of a certificate setting forth such booksRepresentative Expenses, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or to cover any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries Representative Expenses incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion performance of the Representative’s responsibilities, the Representative will deliver duties with respect to any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders Third Party Claim in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingSection 7.6.
Appears in 1 contract
Sources: Merger Agreement (Quantum Corp /De/)
Representative. (a) In order to efficiently administer At the obligations specified in this Agreement Effective Time, Vista will be constituted and efficiently represent appointed as the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as its exclusive agent for such Company Securityholder the agent, proxy and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in for such Company Securityholder’s name and on such Company Securityholder’s behalf Indemnifying Party for all purposes in connection with of this Agreement Agreement, including full powers and any agreements ancillary hereto including authority on such Indemnifying Party’s behalf to (A1) act according to consummate the terms of this Agreement and the Escrow Agreement in the absolute discretion of the RepresentativeTransactions, (B2) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and enter into the Escrow Agreement, (C3) give and receive all notices and service communications to or from Parent (on behalf of processitself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; and (D4) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices pay expenses (whether incurred on or instruments contemplated by or deemed advisable after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the Representative Engagement Agreementpurpose of amending addresses or sharing percentages). Notwithstanding This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the foregoing, death or incapacity of any Indemnifying Party or the Representative shall have no obligation to act on behalf occurrence of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreementany other event, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions action taken by the Representative under this Agreementwill be as valid as if such death, the Escrow Agreementincapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to will have received any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivednotice thereof.
(b) The power Representative will be the sole and exclusive means of attorney asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all authority conferred under this Section 2.5 Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the powersEscrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, immunities or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and rights every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to indemnification granted any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder will constitute a notice to each of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementIndemnifying Parties.
(c) The Representative agrees to be bound by all obligations agency of the Representative under this Agreement or may be changed, and the Escrow Agreement to which it is a party and shall take any and all actions which Person serving as the Representative believes are necessary may be replaced from time to time, by the vote or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment consent of same) for and on behalf Indemnifying Parties representing a majority of the Company Securityholders, including defending Aggregate Escrow Funding Percentages of all indemnity claims pursuant Indemnifying Parties upon not less than ten days’ prior written notice to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and Parent. A vacancy in the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions position of the Representative specified in may be filled by the vote or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality consent of Indemnifying Parties representing a majority of the foregoingAggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, by virtue then the Indemnifying Parties, other than the Representative, representing a majority of the approval Aggregate Escrow Funding Percentage of this Agreement all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Acquisition (Representative will serve until such successor is duly appointed and no qualified to act hereunder. In the event of such Company Securityholder)a vacancy in the position of the Representative, each Company Securityholder grants or refusal or incapability of the Representative full power and authority to interpret all serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the terms and provisions of this Agreement and the Escrow Agreement and Representative will be deemed satisfied if such notice is delivered to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf each of the applicable Company Securityholder or other partyIndemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company SecurityholdersAll expenses, including their individual representativesif any, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative’s services pursuant to this Agreement, and the Representative will not receive any agreements ancillary hereto compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acted acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith, except for liability directly resulting from . The Indemnifying Parties will jointly and severally indemnify the Representative’s willful misconduct or gross negligence. By virtue Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the approval of this Agreement Representative and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement’s duties hereunder.
(f) Buyer The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no liability Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Company Securityholders Indemnifying Parties or otherwise arising out of the acts Representative’s employees, attorneys, accountants, financial advisors, agents or omissions of Representative or any disputes with Representativeauthorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. Buyer may rely entirely on its dealings with, and notices to and fromIf requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to satisfy any obligations it might have under this Agreement or the Escrow Agreementsuch information.
(g) After The initial Representative hereby accepts the Closingappointment contained in this Agreement, Buyer shall afford as confirmed and extended by this Agreement, and agrees to act as the Representative and its accountants, counsel to discharge the duties and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal responsibilities of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund pursuant to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time terms of Closingthis Agreement.
Appears in 1 contract
Representative. (a) In order addition to efficiently administer the obligations specified other rights and authority granted to the Representative elsewhere in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, upon and by virtue of the approval of the requisite Company Stockholders of this Agreement and the Acquisition (and no act of such Company Securityholder)Agreement, and the consummation pursuant to each Letter of Transmittal, all of the Acquisition or participating in the Acquisition Company Stockholders collectively and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints irrevocably constitute and appoint the Representative as its exclusive their agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closingrepresentative to act, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, provided however that the Representative shall have no obligation to the Company Stockholders to act other than as expressly provided herein, from and after the date hereof and to do any and all things and execute any and all documents that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, including: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof, as contemplated by this Agreement; (iii) payment of amounts due to the Parent pursuant to this Agreement; (iv) receipt and forwarding of notices and communications pursuant to this Agreement; (v) administration of the provisions of this Agreement; (vi) giving or agreeing to, on behalf of all or any of the Company Stockholders, any and all consents, waivers, amendments or modifications deemed by the Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vii) amending this Agreement or any of the instruments to be delivered to the Parent pursuant to this Agreement; (viii) (A) disputing or refraining from disputing, on behalf of each Company Stockholder relative to any amounts to be received by such Company Stockholder under this Agreement or any agreements contemplated hereby, any claim made by the Parent under this Agreement or other agreements contemplated hereby, (B) negotiating and compromising, on behalf of each such Company Stockholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (C) executing, on behalf of each such Company Stockholder, any settlement agreement, release or other document with respect to such dispute or remedy; (ix) engaging attorneys, accountants, agents or consultants on behalf of the Company SecurityholdersStockholders in connection with this Agreement or any other agreement contemplated hereby and paying any fees related thereto; and (x) if any Company Stockholder as of the Closing is not an accredited investor, except serving as expressly provided herein“purchaser representative” for such Company Stockholder as such term is defined in Rule 501 of Regulation D. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent herewith, shall be absolutely and irrevocably binding on each Company Stockholder as if such Company Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Company Stockholder’s individual capacity, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) Notwithstanding Section 5.19(a), in the Escrow event that the Representative is of the opinion that it requires further authorization or advice from the Company Stockholders on any matters concerning this Agreement, the Representative shall be entitled to seek such further authorization or advice from the Company Stockholders prior to acting on their behalf. In such event, each Company Stockholders shall vote in accordance with the pro rata portion of the Merger Consideration paid to such Company Stockholders in accordance with this Agreement and in the Representative Engagement Agreement, authorization of a majority of such Persons shall be binding on all of the Company Stockholders and for purposes shall constitute the authorization of clarity, there are no obligations the Company Stockholders. The appointment of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and each Company Stockholder’s attorney-in-fact revokes any power of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of attorney heretofore granted that authorized any other person or persons to represent such Company Securityholder), that all actions taken by the Representative under Stockholder with regard to this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action . The appointment of the Representative taken is coupled with an interest and shall be irrevocable by any Company Stockholder in good faith under this Agreement, the Escrow Agreement any manner or the Representative Engagement Agreement are waived.
(b) The power of attorney and all for any reason. This authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated affected by any the death, illness, dissolution, disability, incapacity or other inability to act of any Company Securityholderprincipal pursuant to any applicable Law. ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund VI, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive L.P. hereby accepts its appointment as the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreementinitial Representative.
(c) The Representative agrees may resign from its position as Representative at any time by written notice delivered to be bound by all obligations the Parent and the Company Stockholders. If there is a vacancy at any time in the position of the Representative under this Agreement or for any reason, such vacancy shall be filled by a majority vote in accordance with the Escrow Agreement to which it is a party and shall take any and all actions which method set forth in Section 5.19(b).
(d) All acts of the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and hereunder in its capacity as such shall be deemed to be acts on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer Stockholders and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions not of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing mattersindividually. Without limiting the generality Other than as a result of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of by the Representative, the Representative will reimburse the Company Securityholders the shall not have any liability for any amount of such indemnified Representative Loss received by the Representative owed to the extent attributable Parent pursuant to such gross negligence or willful misconductthis Agreement. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions Other than as a result of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of by the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required liable to take the Company, the Parent or the Merger Sub, in his or its capacity as the Representative, for any action unless liability of a Company Stockholder or otherwise, or for anything that it may do or refrain from doing in connection with this Agreement. The Representative shall not be liable to the Representative has been provided with funds, security or indemnities whichCompany Stockholders, in its determinationcapacity as the Representative, are sufficient to protect the Representative against the costsfor any liability of a Company Stockholder or otherwise, expenses and liabilities which or for any error of judgment, or any act done or step taken or omitted by it in good faith, or for any mistake in fact or Law, or for anything that it may be incurred by the Representative do or refrain from doing in performing such actions. Notwithstanding anything in connection with this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, except in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its ’s gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors may seek the advice of legal counsel in the event of bankruptcyany dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as the Representative to the Parent, either Merger Sub, the Company or the Company Stockholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the advice of such counsel. As soon as practicable following The Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Company Stockholder, and the completion of parties acknowledge that the Representative’s responsibilities, obligations under this Section 5.19 are solely as a representative of the Company Stockholders and that the Representative will deliver shall have no personal responsibility or liability for any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders expenses, costs or other liabilities incurred by it in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingsuch capacity.
Appears in 1 contract
Sources: Merger Agreement (Office Depot Inc)
Representative. (a) In order to efficiently administer To the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, fullest extent permitted by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisitionlaw, each Company Securityholder Shareholder hereby irrevocably constitutes and appoints the Representative as its exclusive agent for such Company Securityholder and ▇▇▇▇▇▇ ▇▇▇▇▇▇ as such Company Securityholder’s true and lawful Shareholder's attorney-in-fact effective upon and legal and judicial representative (the Closing"Representative"), with full power of substitution, for the purposes of: (i) receiving all notices and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and communications directed to any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising Shareholder under this Agreement and taking any action (or determining to take no action) with respect thereto as the Escrow AgreementRepresentative may deem appropriate, (C) receive all notices and service including the settlement or compromise on behalf of process; any Shareholder of any Third Party Claim or Losses, and (Dii) in general to do all things and to perform all acts, including executing and delivering on behalf of any agreements, certificates, receipts, instructions, notices or Shareholder all instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or and documents of every kind the Representative Engagement Agreement. Notwithstanding may deem necessary or advisable to accomplish the foregoing. Each Shareholder hereby ratifies and confirms, as the Shareholder's own act, all that the Representative shall have no obligation do or cause to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees be done pursuant to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to If the Representative Group hereunder: resigns, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall automatically become the successor representative (i) shall be irrevocable and the "Successor Representative"). The resigning Representative's resignation shall not be terminated effective until the Successor Representative shall have agreed in writing to accept such appointment. If the Representative should die or become incapacitated, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall automatically become the Successor Representative. Upon acceptance by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder a Successor Representative of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoingSuccessor Representative's appointment, the power of attorney appointment shall be to ensure final and binding on the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementShareholders.
(c) The Representative Each Shareholder irrevocably agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement that with respect to all matters arising hereunder any Third Party Claim or thereunderany claim for indemnification hereunder, taking any service of process, writ, judgment or other notice of legal process shall be deemed and all other actions of held in every respect to be effectively served upon the Shareholder if delivered by registered or certified mail, postage prepaid with return receipt requested to the Representative specified at the Representative's address set forth in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality Section 4.1, whom each Shareholder irrevocably appoints as its authorized agent for service of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyprocess.
(d) Certain Company Securityholders have entered into an engagement agreement with The death or incapacity of any Shareholder shall not terminate the authority and agency of the Representative.
(e) Each Shareholder hereby agrees to indemnify the Representative and to provide direction to hold the Representative in connection with its services under this Agreement and harmless against any loss, liability or expense incurred without negligent conduct or bad faith on the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither part of the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case his duties as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, including court costs and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) attorneys' fees and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, defending against any restrictions Third Party Claim or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity Losses in connection with this Agreement, unless the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on shall have received written notice from the other Shareholder to the effect that the Representative Expense Fund and irrevocably transfer and assign to no longer represents the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingShareholder.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in transactions contemplated by this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue including the indemnification obligations of the approval of Company Shareholders under this Agreement Article X, the Company Shareholders hereby designate and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints appoint the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in and as attorneys-in-fact and agent for and on behalf of each Company Shareholder, and the absolute discretion of Representative accepts such appointment as Representative.
(b) The Company Shareholders hereby authorize the RepresentativeRepresentative to represent the Company Shareholders, (B) represent such Company Securityholder and such Company Securityholder’s successors their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including without limitation, (Ci) to take all action necessary in connection with the indemnification obligations of the Company Shareholders under this Article X, including the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices and service of process; and (D) in general required to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated be given by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the any Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of Shareholder under this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available (iii) to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, execute the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending Shareholders and (iv) to take any and all indemnity claims additional action as is contemplated to be taken by or on behalf of the Company Shareholders by the Representative pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(ec) The In the event that the Representative may resign at any time by giving thirty (30) days’ notice dies, becomes unable to Buyer and perform his responsibilities as Representative or resigns from such position, the Company Securityholders; In Shareholders having an aggregate Ownership Percentage Interest greater than 50% shall select another representative to fill such event, the successor vacancy and such substituted Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior deemed to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(fd) All decisions and actions by the Representative, including without limitation any agreement between the Representative and the Buyer will or the Escrow Agent relating to indemnification obligations of the Company Shareholders under this Article X, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all of the Company Shareholders, and no Company Shareholders shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall incur no liability to the Company Securityholders Shareholders with respect to any action taken or otherwise arising out suffered by the Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the acts Company Shareholders under this Article X, including the defense or omissions settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Representative's own willful misconduct or gross negligence. The Representative or any disputes with Representative. Buyer may rely entirely on its dealings withmay, and notices to and from, the Representative to satisfy any obligations it might have in all questions arising under this Agreement or the Escrow AgreementAgreement rely on the advice of counsel, and shall not be liable to the Company Shareholders for anything done, omitted or suffered in good faith by the Representative. The Company Shareholders shall severally indemnify the Representative and hold him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of his or her duties hereunder.
(ge) After The Buyer and the Closing, Buyer Escrow Agent shall afford be able to rely conclusively on the instructions and decisions of the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice respect to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records indemnification obligations of the Company (Shareholders under this Article X, including the defense or settlement of any claims or the making of payments with respect thereto, or as to any other than privileged documents)actions required or permitted to be taken by the Representative hereunder, and (ii) all Company personnel as reasonably identified by no party hereunder shall have any cause of action against the Representative, in each case, Buyer or the Escrow Agent to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries the Escrow Agent has relied upon the instructions or decisions of the Representative.
(including the f) The Company Shareholders acknowledge and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by agree that the Representative (may incur costs and expenses on behalf of the Company SecurityholdersShareholders in his capacity as Representative ("Representative Expenses").
(h) The Representative Expense Fund will be used for . Each of the purposes of paying directly, or reimbursing Company Shareholders agrees to reimburse the Representative for any third party such costs and expenses incurred by the Representative out of the Escrow Amount, promptly upon demand by the Representative therefore. The amount to be paid by each such Company Shareholder shall be equal to the product of the amount of such Representative Expenses multiplied by such Company Shareholder's Ownership Percentage Interest; provided, that, no Company Shareholder shall be required to pay, in the aggregate, Representative Expenses in an amount in excess of the value of such Company Shareholder's Ownership Percentage Interest in the Escrow Amount initially deposited in escrow pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingSection 2.8.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sycamore Networks Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of By the approval of this Agreement pursuant to Delaware Law (or otherwise) and effective upon and by virtue of the Acquisition (Stockholder Approval, and no without any further act of such Company Securityholder)any of the Stockholders, and the consummation by execution of Option Cancellation Agreements by each of the Acquisition or participating in Optionholders with respect to each such Optionholder, the Acquisition Stockholders and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints Optionholders hereby irrevocably appoint the Representative as its exclusive agent for such Company Securityholder the representative, agent, proxy, and as such Company Securityholder’s true and lawful attorney-in-fact effective upon for all the Closing, with Stockholders and Optionholders for all purposes under this Agreement including the full power and authority on the Stockholders’ and Optionholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in such Company Securityholder’s name connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Stockholders and Optionholders (subject to Section 13.13(f) below) any funds received on such Company Securityholder’s behalf for of the Stockholders and Optionholders under this Agreement or otherwise, (iv) to withhold any amounts received on behalf of the Stockholders and Optionholders pursuant to this Agreement or otherwise to satisfy any and all purposes obligations or liabilities incurred by the Stockholders, Optionholders or the Representative in the performance of their duties hereunder, (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Stockholders or Optionholders) and (vi) to take all other actions to be taken by or on behalf of the Stockholders and Optionholders in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any other agreements, certificatesinstruments, receipts, instructions, notices and documents contemplated hereby or instruments contemplated by or deemed advisable executed in connection with herewith. The Stockholders and Optionholders, by approving this Agreement, further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the Escrow Agreement or consent of the Representative Engagement Agreementand shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder or Optionholder. Notwithstanding All decisions and actions by the foregoingRepresentative shall be binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall have no obligation to act on behalf of the Company Securityholdersduties or obligations hereunder, including any fiduciary duties, except as expressly provided those set forth herein, in and such duties and obligations shall be determined solely by the Escrow Agreement and in the Representative Engagement express provisions of this Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of .
(b) By the approval of this Agreement and the Acquisition pursuant to Delaware Law (and no act of such Company Securityholderor otherwise), that all actions taken by each Stockholder and Optionholder hereby severally, for itself only and not jointly, agrees to indemnify and hold harmless the Representative under this Agreementand its members, the Escrow Agreementmanagers, officers, agents and other representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by such Persons in connection with any action, suit or proceeding to which the Representative Engagement Agreement shall be binding upon or such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing other Person is made a party by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action reason of the Representative taken in good faith under this Agreement, the Escrow Agreement fact that it is or was acting as the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted pursuant to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act terms of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of Neither the Representative under this Agreement nor any of its members, managers, officers, agents or the Escrow Agreement other representatives shall incur any liability to which it is a party and shall take any and all actions which the Representative believes are necessary Stockholder or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, Optionholder by virtue of the approval of this Agreement and the Acquisition (and no act failure or refusal of such Company Securityholder)Persons for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, each Company Securityholder grants the Representative full power except for actions or omissions constituting intentional and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsknowing fraud. The Representative and its members, managers, officers, agents and other representatives shall have no liability in respect of any action, claim or proceeding brought against such Persons by any Stockholder or Optionholder, regardless of the legal theory under which such liability or obligation may be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it sought to be genuineimposed, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder whether sounding in contract or other partytort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any action in good faith.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement Upon final resolution of all indemnification obligations and the Escrow Agreement (such Company Securityholdersfull reimbursement of all expenses, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and obligations, or liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement the performance of its duties hereunder, the Representative shall distribute all remaining funds held by it on behalf of the Stockholders and Optionholders to the contraryStockholders and Optionholders, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting it being understood and agreed that such distribution(s) shall be the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal responsibility of the Representative only and that neither the Purchaser nor the Surviving Corporation shall have any obligation to ensure that such distribution is, or the termination of this Agreementdistributions are, made.
(e) The Representative parties hereto agree that the fact that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP may resign at any time by giving thirty (30) days’ notice to Buyer and have represented the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to Closing shall not prevent ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP from representing the Closing. If Stockholders (including the Representative is unable to perform hisRepresentative) or the Optionholders in connection with any matters involving, her or its obligations under this Agreement orincluding any disputes with, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority any of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementparties hereto after Closing.
(f) Buyer will have no liability Notwithstanding any provision to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and fromcontrary, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice may pay to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, Surviving Corporation or authorize payment to the extent reasonably related Surviving Corporation of any amounts to such claims under the Claim Notice; provided, however, that (x) access be paid to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred Optionholders pursuant to this Agreement or their respective Option Cancellation Agreements, which amounts shall be paid by Purchaser and the Related Agreements, or (ii) Surviving Corporation as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or set forth in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingSection 2.04 above.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent transactions contemplated hereby, including (i) the interests determination of the Company Securityholders with respect Final Closing Adjustment and the Adjusted Transaction Consideration, (ii) the waiver of any condition to all matters arising under the obligations of the Equity Holders to consummate the transactions contemplated hereby and (iii) the dispute, defense and/or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to this Agreement or the Escrow Agreement, the Principal Stockholders, by virtue their execution of this Agreement, and the other Equity Holders, by the approval of the Merger and adoption of this Agreement and the Acquisition (and no act and/or their acceptance of such Company Securityholder)any consideration pursuant to this Agreement, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints hereby designate the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful their representative, attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedagent.
(b) The power Principal Stockholders, by their execution of attorney and all authority conferred under this Section 2.5 Agreement, and the powersother Equity Holders, immunities by the approval of the Merger and rights adoption of this Agreement and/or their acceptance of any consideration pursuant to indemnification granted to this Agreement, hereby authorize the Representative Group hereunder: (i) shall be irrevocable to make all decisions relating to the determination of the Final Closing Adjustment and shall not be terminated by any act of any Company Securityholderthe Adjusted Transaction Consideration pursuant to Section 1.9, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive to take all action necessary in connection with the delivery waiver of an assignment by any Company Securityholder condition to the obligations of the whole Company and the Equity Holders to consummate the transactions contemplated hereby, or the dispute, defense and/or settlement of any fraction of hisclaims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, her (iii) to give and receive all notices permitted or its interest in required to be given under this Agreement, (iv) to execute and deliver the Escrow Amount. Without limiting the foregoing, the power of attorney shall Agreement and (v) to take any and all additional action as is contemplated to be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, taken by virtue or on behalf of the approval Equity Holders by the terms of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The In the event that the Representative agrees becomes unable to be bound perform its responsibilities hereunder or resigns from such position, the Equity Holders (acting by the vote of the Company Stockholders who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares held by all obligations Company Stockholders (voting on an as-converted to Common Share basis)) shall select another representative to fill the vacancy of the Representative under initially chosen by the Company Stockholders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement or and the Escrow Agreement to which it is a party documents delivered pursuant hereto.
(d) All decisions and shall take any and all actions which of the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company SecurityholdersEquity Holders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Equity Holders, and no Equity Holder shall have the right to object, dissent, protest or otherwise contest the same. A decision, act, consent, instruction or action of the Representative, including defending all indemnity any agreement between the Representative and the Buyer relating to the determination of the Final Closing Adjustment, the Adjusted Transaction Consideration or the dispute, defense or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article 9VI hereof, consenting toshall constitute a decision, compromising act, consent, instruction or settling action of all Equity Holders and shall be binding and conclusive upon each of such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer Equity Holders and the Parties, the Surviving Corporation and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Equity Holder. The Buyer, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Equity Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) The Representative will receive no compensation for services as the Representative except as set forth in that certain Engagement Agreement to be entered into among the Representative and certain Company Stockholders. The Equity Holders will pay all (i) professional fees and expenses of any attorney, accountant or other advisors or expert retained by the Representative and other reasonable out-of-pocket expenses incurred by the Representative in connection with the performance of the Representative’s duties under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeituresforefeitures, actions, fees, costs and expenses (including actually incurred or suffered by the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) Representative in connection with this Agreement or the Escrow Agreement as the Representative (collectively, the “Representative LossesExpenses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss Expense is suffered or incurred; provided, that in the event that any such Representative Loss Expense is finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders Equity Holders the amount of such indemnified Representative Loss received by the Representative Expense to the extent attributable to such fraud, gross negligence or willful misconduct. Such Representative Losses Expenses may only be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time (as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (iiset forth below) and (iii) do the Equity Holders directly; provided that while this Section allows the Representative to be paid from the Representative Expense Fund and the Escrow Fund, this does not relieve the Equity Holders from their obligation to promptly pay such Representative Expenses as such Representative Expenses are actually suffered or incurred, nor does it prevent the Representative Group from seeking any remedies against the Equity Holders available to them it at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductotherwise. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders Equity Holders or otherwise. FurthermoreFollowing the exhaustion of the Representative Expense Fund and the expiration of the Representative Period and the resolutions of all pending claims related thereto (and, for the avoidance of doubt, at no time prior thereto), the Representative shall have the right to recover Representative Expenses from the Escrow Fund prior to any distribution to the Equity Holders. The Equity Holders will on an individual and several basis (and not be required jointly as to take or with any action unless other Equity Holder) indemnify, defend, hold harmless and reimburse, on an Equity Holder Pro Rata Basis, the Representative has been provided with funds, security or indemnities whichfor Representative Expenses, in its determinationeach case as such Representative Expenses are incurred. Notwithstanding the foregoing, are sufficient to protect the Representative against the costs, expenses shall first seek reimbursement and liabilities which may be incurred by recovery from the Representative Expense Fund, and only thereafter directly from the Equity Holders in performing such actions. Notwithstanding anything in accordance with the terms of this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this sectionAgreement. The Equity Holders acknowledge and agree that the foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement, and the Representative and the Equity Holders acknowledge and agree that the provisions of this paragraph (e) shall impose no obligations on the Company, the Surviving Corporation, the Buyer or any of their respective Affiliates.
(ef) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform By his, her or its obligations under execution of this Agreement orAgreement, in the case of a Representative that is not a natural Personeach Principal Stockholder, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority and by their approval of the Company Ordinary Shares (on an as converted basis) as Merger and adoption of immediately prior this Agreement, and/or their acceptance of any consideration pursuant to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrarythis Agreement, if each other Equity Holder, agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative resigns as to the determination of the Final Closing Adjustment and the Adjusted Transaction Consideration, the settlement of any claims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI or otherwise is unable any other actions required or permitted to perform its obligations as suchbe taken by the Representative hereunder, and no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without Equity Holder shall have any further cause of action of or consent by any Person, the Advisory Group, shall be against the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities for, and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will shall have no liability to any Equity Holder in connection with, any action taken or omitted, decision made or instruction given by the Company Securityholders Representative under this Agreement, except in the event of liability directly resulting from fraud, gross negligence or otherwise arising out willful misconduct on the part of the acts Representative;
(iii) each such Equity Holder will, on an individual and several basis based on their Equity Holder Pro Rata Basis (and not jointly as to or omissions of Representative or with any disputes with Representative. Buyer may rely entirely on its dealings withother Equity Holder) indemnify, defend and notices to and from, hold harmless the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(gin accordance with Section 1.11(e) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Noticeabove; provided, howeverthat that Representative shall first seek recovery from the Representative Expense Fund;
(iv) the provisions of this Section 1.11 are independent and severable, that (x) access to such books, records, documents are irrevocable and personnel will not unreasonably interfere coupled with the normal operations of Buyer an interest and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the shall be enforceable notwithstanding any rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or remedies that any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity Equity Holder may have in connection with the Representative Expense Amounttransactions contemplated by this Agreement;
(v) remedies available at Law for any breach of the provisions of this Section 1.11 are inadequate; therefore, the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.11; and
(vi) the provisions of this Section 1.11 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Equity Holder, and has no tax reporting any references in this Agreement to an Equity Holder or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund Equity Holders shall mean and irrevocably transfer and assign include the successors to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate fundsEquity Holder’s rights hereunder, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available whether pursuant to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiestestamentary disposition, the Representative will deliver any remaining Laws of the Representative Expense Fund to the Paying Agent for further descent and distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingor otherwise.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees Holders irrevocably appoint Stone Point Capital LLC to act as the designated representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of such Holders with full authority to make all decisions and determinations and to take all actions required or permitted under or relating to this Agreement and the Acquisition (and no act Escrow Agreement on behalf of such Company SecurityholderHolders (the committee, in such capacity, the "Representative"), including (i) approving any of the documents required to be delivered by such Holders on or after the Closing Date, (ii) approving or contesting the Closing Statement, and/or the Initial Merger Consideration adjustments, as set forth in Article III of this Agreement, and any other matter provided for in Article III of this Agreement, (iii) administering any indemnification matter on behalf of the Holders, agreeing to the settlement of any indemnification matter and otherwise handling and negotiating indemnification matters, (iv) agreeing to any waiver, consent or amendment under or to this Agreement, provided that no such waiver, consent or amendment shall adversely affect the allocation of any consideration hereunder to any Holder who does not expressly consent thereto in writing, (v) distributing to the Holders any portion of any consideration hereunder payable to the Holders after the Closing Date, (vi) sending, receiving and reviewing notices under this Agreement on behalf of the Holders and (vii) appointing a successor Representative in the event of the resignation or death of the then current Representative. Each Holder acknowledges that this Section 11.12 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and handling of all matters which arise under or in connection with this Agreement. All actions taken by the Representative under this Agreementin connection with, or relating to, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action subject matter of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which that are within the authority conferred upon the Representative believes are necessary or appropriate under pursuant to this AgreementSection 11.12 shall be deemed authorized, approved, ratified and confirmed by the Holders, having the same force and effect as if performed pursuant to the direct authorization of such Holders. Subject to the terms of the Escrow Agreement, or the Representative Engagement Agreement (including entering into shall be entitled, absent gross negligence or bad faith, to indemnification in connection with the performance by the Representative of its rights and obligations pursuant to this Section 11.12 and/or under the Escrow Agreement, which indemnification shall be satisfied solely by having recourse against the Escrow Funds; provided that, subject to Section 7 of the Escrow Agreement, any amendment such indemnification of same) for the Representative shall be subject and strictly subordinated to any rights of the Parent and the other Indemnified Parties against the Escrow Fund pursuant to the Escrow Agreement, with no Escrow Funds to be paid to the Representative until the Parent and the Indemnified Parties have no further rights thereto and such funds are about to be returned to the Holders. The Parent shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Representative on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising Holders and shall not be liable in any manner whatsoever for any action taken or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and not taken in reliance upon the Company under this Agreement and actions taken or not taken or communications or writings given or executed by the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsRepresentative. The Representative Parent shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon to disregard any signature believed notices or communications given or made by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder any Holder unless given or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with made through the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Fidelity National Financial Inc /De/)
Representative. (a) Each Seller hereby irrevocably constitutes and appoints Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the Representative, for the purpose of performing and consummating the transactions contemplated by this Agreement. The appointment of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the Representative is coupled with an interest and all authority hereby conferred shall be irrevocable and the Representative is hereby authorized and directed to perform and consummate on behalf of Sellers all of the transactions contemplated by this Agreement.
(b) The Representative shall pay all costs and expenses incurred by or on behalf of the Representative, in his capacity as such, including costs and expenses incurred in connection with any pending or threatened dispute or claim with respect to this Agreement, any other Transaction Document or any agreement, document or instrument entered into pursuant to this Agreement, or the transactions contemplated hereby. The Representative shall be reimbursed for all such fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) first from the Representative Expense Fund Amount and thereafter from the Sellers pro rata in accordance with their Ownership Percentages. In order connection with the foregoing, at the Closing, the Representative Expense Fund Amount shall be transferred by or on behalf of the Buyer to efficiently administer the obligations specified Representative, to be used by the Representative to pay expenses incurred by the Representative in his or her capacity as the Representative. Once the Representative determines, in his or her sole discretion, that the Representative will not incur any additional expenses in its capacity as the Representative, then the Representative will distribute the remaining unused Representative Expense Fund Amount, if any, to the Sellers in amounts proportionate to their respective Ownership Percentages.
(c) Not by way of limiting the authority of the Representative, each and all of Sellers, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the Representative to:
(i) waive any provision of this Agreement which the Representative deems necessary or desirable;
(ii) execute and deliver on Sellers’ behalf all documents and instruments which may be executed and delivered pursuant to this Agreement, including without limitation the Acquired Shares and any transfer documentation with respect thereto;
(iii) calculate, negotiate and agree to any adjustments to the Purchase Price;
(iv) make and receive notices and other communications pursuant to this Agreement and efficiently represent the interests service of process in any legal action or other Proceeding arising out of or related to this Agreement or any of the Company Securityholders transactions contemplated hereunder;
(v) contest, negotiate, defend, compromise or settle any action, claims or disputes arising out of or related to this Agreement or any of the transactions contemplated hereunder through counsel selected by the Representative and solely at the cost, risk and expense of Sellers;
(vi) satisfy any indemnification amounts owed pursuant to the terms herein;
(vii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to all matters such indemnification obligations or actions, claims or disputes;
(viii) resolve any actions, claims or disputes arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition from Sellers indemnification obligations hereunder;
(and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable ix) take any actions in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and resolution of any agreements ancillary dispute relating hereto including to (A) act according or to the terms of this Agreement transactions contemplated hereby by arbitration, settlement or otherwise;
(x) receive and the Escrow Agreement in the absolute discretion distribute all or any portion of the RepresentativePurchase Price or any other payment owing to Sellers hereunder in accordance with the terms herein or therein;
(xi) appoint or provide for successor agents;
(xii) select, retain, hire and consult with legal counsel, independent public accountants and other experts, solely at the cost and expense of Sellers;
(Bxiii) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices pay expenses incurred or instruments contemplated which may be incurred by or deemed advisable on behalf of Sellers in connection with this Agreement, ; and
(xiv) take or forego any or all actions permitted or required of any Sellers or necessary in the Escrow Agreement or judgment of the Representative Engagement for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Notwithstanding the foregoing, .
(d) Each Seller agrees that the Representative shall have no obligation Liability to Sellers for any act on behalf or omission by the Representative as permitted under this Section, excepting only actions taken in bad faith, and each Seller hereby irrevocably waives and releases any claims it may have against the Representative for his acts and omissions hereunder other than any actions taken in bad faith.
(e) EACH SELLER UNDERSTANDS AND ACKNOWLEDGES THAT HE OR SHE IS: (A) AUTHORIZING THE REPRESENTATIVE TO ACT FOR THE SELLERS, COLLECTIVELY AND INDIVIDUALLY, WITH BROAD POWERS; AND (B) AGREEING THAT THE REPRESENTATIVE WILL NOT BE LIABLE TO THE SELLERS, COLLECTIVELY OR INDIVIDUALLY, UNLESS THE REPRESENTATIVE ACTS IN BAD FAITH. EACH SELLER FURTHER ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED TO SEEK INDEPENDENT AND SEPARATE COUNSEL PRIOR TO SIGNING THIS AGREEMENT AND HAS HAD THE OPPORTUNITY TO DO SO.
(f) In the event of the Company Securityholders, except failure or refusal of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇o act as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement(or upon the death or incapacity (mental or physical) for more than 14 days of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇r any successor), and the remaining Seller that is an individual shall be deemed the Representative for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement Section 11.17 and the Acquisition Agreement.
(and no act of such Company Securityholder), that all g) All actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder each Seller and such Company Securityholder’s its successors as if expressly confirmed and ratified in writing by such Company Securityholder, each of them and all defenses which may be available to any Company Securityholder Seller to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement any other Transaction Document are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted . Buyer shall serve notice to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be with respect to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary matters concerning any Seller arising out of or appropriate under related to this Agreement, the Escrow Agreement, Transaction Documents or the Transaction.
(h) Buyer shall be entitled to rely conclusively (without further evidence of any kind whatsoever) upon any document or other paper delivered by the Representative Engagement Agreement as being authorized by each Seller, as applicable. All decisions and actions by the Representative, including any agreement between the Representative and Buyer relating to (including entering into any amendment of samei) for and on behalf the determination of the Company SecurityholdersEstimated Cash Purchase Price and the Final Cash Purchase Price pursuant to Section 1.3 (ii) the defense or settlement of any claims for which Sellers, including defending all indemnity claims as applicable, may be required to indemnify Buyer Indemnified Parties pursuant to Article 99 hereof, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder any amendment, supplement, or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance modification of this Agreement and any agreements ancillary heretowaiver of any claim or right arising out of this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholdersdischarging Liabilities and obligations, and (iiiiv) directly from the Company Securityholdersperformance of all things and acts, as such Representative Losses are suffered including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or incurred; provided that deemed advisable to effectuate the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory GroupSection 11.17, shall be binding upon each Seller, and no Seller shall have the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights right to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders object, dissent, protest or otherwise arising out of contest the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreementsame.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified By voting in this Agreement and efficiently represent the interests favor of the Company Securityholders with respect to all matters arising under adoption of this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act principal terms of such Company Securityholder)the Merger, and the consummation of the Acquisition Merger or participating in the Acquisition Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the AcquisitionMerger, each Company Securityholder appoints Member shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC as the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon of the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf Closing for all purposes in connection with this Agreement and any the agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedhereto.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and will incur no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, Agreement and any agreements ancillary hereto while acted in good faithhereto, except for in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct misconduct. The Representative shall not be liable for any action or gross negligenceomission pursuant to the advice of counsel. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder The Members will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders Members the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such If not paid directly to the Representative by the Members, any such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, Fund and (ii) second, from any distributions of the Escrow Fund other funds that become payable to the Company Shareholders or other post-closing payment Members under this Agreement at such time as such amounts would otherwise be distributable to the Company SecurityholdersMembers; provided, and (iii) directly that while this section allows the Representative to be paid from the Company Securityholdersaforementioned sources of funds, as this does not relieve the Members from their obligation to promptly pay such Representative Losses as they are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not nor does it prevent the Representative Group from seeking any remedies available to them it at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductotherwise. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders Members or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, parties otherwise applicable to to, the Company Securityholders Members set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(ec) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After Upon the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company will wire US$150,000 (other than privileged documents), and (iithe “Expense Fund”) all Company personnel as reasonably identified by to the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund which will be used for the purposes of paying directly, or reimbursing the Representative for for, any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Groupagreements ancillary hereto. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders Members will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver shall cause (at the Members’ expense) the disbursement of any remaining balance of the Representative Expense Fund to the Paying Agent for further distribution Members based on such Members’ pro rata portions thereof, except in the case of payments to employees or former employees of the Company Securityholders in accordance with their respective Pro Rata Shares. for which employment tax withholding is required, which such amounts shall be delivered to GigCapital2 or the Surviving Company and the agreements ancillary heretopaid through GigCapital2’s or Surviving Company’s payroll processing service or system. For tax purposes, the Representative Expense Fund will shall be treated as having been received and voluntarily set aside by the Company Securityholders Members at the time of Closing. The parties agree that the Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. [Signature Page Follows.]
Appears in 1 contract
Representative. (a) In order to efficiently administer a. The Equityholders, Bonus Recipients and Convertible Noteholders have agreed that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be constituted and appointed as the obligations specified in this Agreement Representative, and efficiently represent the interests act on behalf of all of the Company Securityholders with respect to all matters arising under Equityholders, Bonus Recipients and Convertible Noteholders for the purposes specified herein. For purposes of this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and term “Representative” shall mean the Acquisition (and no act of such Company Securityholder)representative, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-agent, proxy and attorney in fact effective upon the Closingof each Equityholder, Bonus Recipient and Convertible Noteholder for all purposes of this Agreement, with full power and authority in on each such Company SecurityholderEquityholder’s, Bonus Recipient’s name and on Convertible Noteholder’s behalf, and such Company SecurityholderEquityholder’s, Bonus Recipient’s behalf for all purposes in connection and Convertible Noteholder’s successors and assigns, with this Agreement and any agreements ancillary hereto including to (A) act according to the terms full power of this Agreement and the Escrow Agreement substitution in the absolute discretion of the Representativepremises, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Transaction Documents, including, without limitation, (i) to consummate the transactions contemplated herein, (ii) to pay such Equityholder’s, Bonus Recipient’s and Convertible Noteholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (Ciii) receive all notices to receive, give receipt and service disburse any funds received hereunder on behalf of process; or to such Equityholder, Bonus Recipient and (D) in general to do all things Convertible Noteholder and each other Equityholder, Bonus Recipient and Convertible Noteholder and to perform hold back from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Company Stock and execution of such further instruments as Parent shall reasonably request, (v) to execute and deliver on behalf of such Equityholder, Bonus Recipient and Convertible Noteholder all actsdocuments contemplated herein and any amendment or waiver hereto, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated (vi) to take all other actions to be taken by or deemed advisable on behalf of such Equityholder, Bonus Recipient and Convertible Noteholder in connection with herewith, (vii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoingincluding without limitation, the Representative shall have no obligation disputes regarding any adjustment pursuant to act Section 2.12, (viii) to give and receive notices on behalf of such Equityholder, Bonus Recipient and Convertible Noteholder and (ix) to do each and every act and exercise any and all rights which such Equityholder, Bonus Recipient and Convertible Noteholder is, or the Company SecurityholdersStockholders, except Optionholders, Bonus Recipients or Convertible Noteholders (as expressly provided hereinapplicable) collectively are, in permitted or required to do or exercise under this Agreement. Each Equityholder, Bonus Recipient and Convertible Noteholder, by approving the Escrow Agreement principal terms of the Merger, accepting the consideration payable to them hereunder, and in the Representative Engagement completion and execution of a Joinder Agreement, and for purposes of clarityOptionholder Agreement, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit Payment Agreement or the Disclosure Schedule. The Representative agrees to act payoff letter (as the representative, agent and applicable) irrevocably grant unto said attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative agent full power and authority to interpret all the terms do and provisions of this Agreement perform each and the Escrow Agreement every act and to consent to any amendment hereof thing necessary or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it desirable to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative done in connection with the Representative’s services pursuant to transactions contemplated by this Agreement, as fully to all intents and any agreements ancillary hereto while acted purposes as the Equityholders, Bonus Recipients or Convertible Noteholders might or could do in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligenceperson. By virtue Each of the approval of this Agreement Equityholders, Bonus Recipients and the Acquisition Convertible Noteholders agrees that such agency and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection proxy are coupled with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determinationan interest, are sufficient to protect therefore irrevocable without the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal consent of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation death, incapacity or removal bankruptcy of the Representative any Equityholder, Bonus Recipient or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory GroupConvertible Noteholder. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any hereby accepts such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingappointment.
Appears in 1 contract
Sources: Merger Agreement (Mitek Systems Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests For purposes of the Company Securityholders with respect to all matters arising Claims under this Agreement or Section 9.02 that are payable under the Escrow Agreement, by virtue the Genisys Shareholders hereby consent to the appointment of the approval Representative, as representative of this Agreement and the Acquisition (and no act of such Company Securityholder)Genisys Shareholders, and as the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of each Genisys Shareholder, and, subject to the Company Securityholdersexpress limitation set forth below, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and taking by the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking Representative of any and all other actions and the making of any decisions required or permitted to be taken by the Representative for Claims under Section 9.02 that are payable under the Escrow Agreement, including, without limitation, the exercise of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon authorize delivery to ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ of the Payment SpreadsheetEscrow Shares, or any portion thereof, in satisfaction of any Claims, (ii) rely upon any signature believed by it to be genuineagree to, negotiate, enter into settlements and compromises of, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf demand arbitration and comply with orders of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement courts and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member awards of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind arbitrators with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense FundClaims, (iiiii) second, from resolve any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company SecurityholdersClaims, and (iiiiv) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that take all actions necessary in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal judgment of the Representative or for the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority accomplishment of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, foregoing and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group other terms, conditions and the Closing and/or any termination limitations of this Agreement and the Escrow Agreement.
(f) Buyer . The Representative will have no liability unlimited authority and power to act on behalf of each Genisys Shareholder with respect to Claims under Section 9.02 that are payable under the Company Securityholders Escrow Agreement and the disposition, settlement or otherwise other handling of all Claims, rights or obligations arising out under Section 9.02 that are payable under the Escrow Agreement so long as all Genisys Shareholders are treated in the same manner. The Genisys Shareholders will be bound by all actions taken by the Representative in connection with Claims under Section 9.02 that are payable under the Escrow Agreement, and ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ will be entitled to rely on any action or decision of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, In performing the functions specified in Section 9.02 and notices to and fromthe Escrow Agreement, the Representative will not be liable to satisfy the Genisys Shareholders in the absence of gross negligence or willful misconduct. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby accepts the position of Representative subject to the right to resign as set forth below. The Representative may resign from such position, effective upon a new representative being appointed in writing by Genisys Shareholders who beneficially own a majority of the Escrow Shares. The Representative will not be entitled to receive any obligations it might have under compensation from ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ or the Genisys Shareholders in connection with this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable . Any out-of-pocket costs and expenses of Buyer and its Subsidiaries reasonably incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with actions taken pursuant to the Representative Expense Amount, terms of Section 9.02 and has no tax reporting or income distribution obligations. The Company Securityholders the Escrow Agreement will be paid (but not receive any interest or earnings on out of the Representative Expense Fund and irrevocably transfer and assign Escrow Shares) by the Genisys Shareholders to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available proportion to its creditors their percentage interests in the event of bankruptcy. As soon Escrow Shares as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund set forth on ATTACHMENT A to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingEscrow Agreement.
Appears in 1 contract
Representative. (i) Each Seller hereby irrevocably appoints the Representative to serve as the representative of the Sellers with respect to the matters expressly set forth in this Agreement to be performed by the Representative. Each Seller hereby irrevocably appoints the Representative as the agent, proxy and attorney in fact for such Seller for all purposes of this Agreement, including full power and authority on such Seller’s behalf to (a) In order consummate the Transactions, (b) pay expenses (whenever incurred) in connection with the Transactions, (c) disburse any funds received hereunder to efficiently administer the obligations specified Sellers or other payees, (d) execute and deliver on behalf of such Seller any amendment or waiver hereto, (e) take all other actions to be taken by or on behalf of such Seller in this Agreement connection herewith, (f) negotiate, settle, compromise and efficiently represent otherwise handle any claims made by an Indemnified Party and (g) do each and every act and exercise any and all rights which such Seller is, or the interests of the Company Securityholders with respect Sellers collectively are, permitted or required to all matters arising do or exercise under this Agreement or the Escrow Agreementany other Transaction Document. All decisions, by virtue actions, consents and instructions of the approval of this Agreement Representative may be relied upon by Purchaser and its Affiliates and any other Person.
(ii) The Representative will not be liable to Purchaser or the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating Sellers in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints its capacity as the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-any Liability of a Seller or for any error of judgment, or for any act done or step taken or omitted by the Representative in good faith or for any mistake in fact effective upon the Closingor law, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf or for all purposes anything that it may do or refrain from doing in connection with this Agreement and except in the case of actual fraud by it. The Representative may seek the advice of reputable legal counsel in the event of any agreements ancillary hereto including to (A) act according dispute or question as to the terms construction of any of the provisions of this Agreement or its duties hereunder, and it will incur no Liability in its capacity as Representative to Purchaser or the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder Sellers and such Company Securityholder’s successors will be fully protected with respect to all matters arising under this Agreement and any action taken, omitted or suffered by it in good faith in accordance with the Escrow Agreement, (C) receive all notices and service opinion of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedulesuch counsel. The Representative agrees to act as the representativemay in good faith rely conclusively on information, agent reports, statements and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesopinions prepared or presented by counsel or other professionals retained by it, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions any action taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall based on such reliance will be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available deemed conclusively to any Company Securityholder to contest, negate or disaffirm the action of the Representative have been taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amountfaith. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative will have full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement or any other agreement in connection herewith and to consent to any amendment hereof or thereof for, in the name and on behalf of all such Company Securityholder Sellers and its such successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and .
(iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder Any expenses or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission liabilities incurred by the Representative in connection with the Representative’s services pursuant to performance of its duties under this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from Agreement will not be the Representative’s willful misconduct or gross negligence. By virtue personal obligation of the approval Representative but will be payable by the Sellers jointly and severally. No provision of this Agreement and or any other agreement in connection herewith will require the Acquisition and no other act Representative to expend or risk its own funds or otherwise incur any financial Liability in the exercise or performance of any Company Securityholderof its powers, each Company Securityholder rights, duties or privileges under this Agreement or any other agreement in connection herewith on behalf of any Seller.
(based on such Company Securityholder’s Pro Rata Share)iv) The Sellers, severally jointly and not jointlyseverally, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) and its successors and assigns 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 Losses”) Losses arising out of or in connection with the Representative’s execution and performance (solely in its capacity as the Representative) of this Agreement and any agreements ancillary heretoAgreement, in each case as such Representative Loss is suffered Losses are incurred or incurred; providedsuffered, that in the event that any such Representative Loss is finally adjudicated to have been directly caused except for actual fraud by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative . Subject to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) firstforegoing, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required liable to advance any Seller (or its own funds on behalf of the Company Securityholders successors) for any indirect, punitive, special or otherwiseconsequential damages. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or This indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the The Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder hereby irrevocably appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholdereach Unitholder’s true and lawful representative, attorney-in-fact effective upon and agent of the ClosingUnitholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement. By its approval of the Merger and the adoption of this Agreement and/or its acceptance of any consideration pursuant to this Agreement, with full each Unitholder hereby irrevocably approve and adopt the appointment of the Representative. In connection therewith, the Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate, and shall have the power and authority in such Company Securityholder’s name to:
(i) act for some or all of the Unitholders with regard to all matters pertaining to this Agreement;
(ii) act for the Unitholders to transact matters relating to Proceedings;
(iii) execute and on such Company Securityholder’s behalf for deliver all purposes amendments, waivers, ancillary agreements, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement Agreement;
(iv) receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of the Unitholders, any agreements ancillary hereto including to (A) further act according or deed that the Representative deems necessary or appropriate in the Representative’s discretion relating to the terms subject matter of this Agreement Agreement, in each case as fully and completely as the Unitholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Unitholders under this Agreement;
(vii) give any written direction to the Paying Agent or the Escrow Agent on behalf of the Unitholders; and
(viii) receive service of process in connection with any claims under this Agreement. All decisions and actions of the Representative on behalf of the Unitholders shall be binding upon all Unitholders, and no Unitholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) The Representative shall act for the Unitholders on all of the matters set forth in this Agreement in the absolute discretion manner the Representative believes to be in the best interest of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Unitholders. The Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation is authorized to act on behalf of the Company SecurityholdersUnitholders notwithstanding any dispute or disagreement among the Unitholders. In taking any action as Representative, except as expressly provided hereinthe Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person whom the Representative reasonably believes to be authorized thereunto. The Representative may, in all questions arising hereunder, rely on the Escrow advice of counsel, and the Representative shall not be liable to any of the parties hereto or to any Unitholder for anything done, omitted or suffered in good faith by the Representative based on such advice. The Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Representative. The Representative shall not have any liability to any of the parties hereto or the Unitholders for any act done or omitted hereunder as Representative while acting in good faith. To the extent not satisfied from the Representative Engagement AgreementAccount, the Representative shall be entitled to reimbursement, from the Unitholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Representative in such capacity, and for purposes indemnification against any loss, liability or expenses arising out of clarity, there are no obligations actions taken or omitted to be taken in its capacity as the Representative (except for those arising out of the Representative in any ancillary agreement, schedule, exhibit Representative’s bad faith or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholderwillful misconduct), that all actions taken by including the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder costs and such Company Securityholder’s successors as if expressly confirmed expenses of investigation and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action defense of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreementclaims.
(c) The Representative agrees shall have reasonable access to be bound by all obligations relevant information about the Company for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder; provided that the Representative under this Agreement shall treat confidentially and not disclose any nonpublic information from or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of about the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants anyone except (i) in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) disputes arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto(ii) as required by law or to its employees, advisors or consultants and to the Unitholders, in each case as who have a need to know such Representative Loss is suffered or incurred; providedinformation, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused persons are bound by the gross negligence or willful misconduct obligations of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided confidentiality to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of at least as high a standard as those imposed on the Representative or the termination of under this Agreement.
(ed) The In the event the Representative may resign at any time by giving thirty (30) days’ notice becomes unable to Buyer and perform the Company Securityholders; In Representative’s responsibilities hereunder or resigns from such eventposition, the successor Representative shall be selected Unitholders (acting by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) written instrument signed by Unitholders who held, as of immediately prior to the Closing. If the Representative is unable to perform hisEffective Time, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (measured on an as as-exercised and as-converted basis) of the then outstanding Units) shall select another representative to fill the vacancy of the Representative, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement. The Representative may be removed only upon delivery of written notice to Parent signed by persons who, as of immediately prior to the Closing Effective Time, held a majority (measured on an as-exercised and as-converted basis) of the then outstanding Units.
(e) For all purposes of this Agreement:
(i) Parent shall appoint a successor Representative. Notwithstanding anything herein be entitled to rely conclusively on the instructions and decisions of the Representative as to the contrarysettlement of any disputes or claims under this Agreement, if or any other actions required or permitted to be taken by the Representative hereunder, and no party hereunder or any Unitholder shall have any cause of action against Parent for any action taken by Parent in reliance upon the instructions or decisions of the Representative;
(ii) the provisions of this Section 9.19 are independent and severable, are irrevocable (subject only to Section 9.19(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Unitholder may have in connection with the transactions contemplated by this Agreement; and
(i) the Representative resigns or otherwise is unable to perform its obligations as suchprovisions of this Section 9.19 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Unitholder, and (ii) no successor Representative is appointed any references in this Agreement to a Unitholder shall mean and include the successors to the rights of each applicable Unitholder hereunder, whether pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Persontestamentary disposition, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities laws of descent and rights to indemnification shall survive the resignation distribution or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementotherwise.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order to efficiently administer Effective upon and by virtue of the obligations specified in Shareholder Approval, and without any further act of any of the Shareholders, Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each Holder for purposes of this Agreement and efficiently represent the interests Escrow Agreement and will take such actions to be taken by Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) executing and delivering this Agreement, the Escrow Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Holder as compared to other Holders shall require the prior written consent of such Holder), (ii) taking all actions and making all filings on behalf of such Holders with any Governmental Body or other Person necessary to effect the consummation of the Company Securityholders transactions contemplated by this Agreement, (iii) agreeing to, negotiating, entering into settlements and compromises of, complying with Orders with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, (iv) using the Representative Expense Amount, in its sole discretion, to satisfy costs, expenses and/or liabilities of Representative in connection with matters related to this Agreement and/or Escrow Agreement as Representative, and (v) taking all other actions that are either necessary or appropriate in the judgment of Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. Representative hereby accepts such appointment. Representative shall use commercially reasonable efforts based on contact information available to Representative to keep the Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of Representative hereunder shall constitute a decision, act, consent or instruction of all matters Holders and shall be final, binding and conclusive upon each of such Holders, and Parent may rely upon any such decision, act, consent or instruction of Representative as being the decision, act, consent or instruction of each and every such Holder. Parent and the Escrow Agent shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Representative.
(c) Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Representative to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the fraud of Representative. In all questions arising under this Agreement or the Escrow Agreement, by virtue Representative may rely on the advice of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)outside counsel, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall will not be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available liable to any Company Securityholder to contestHolder for anything done, negate omitted or disaffirm the action of the Representative taken suffered in good faith under this Agreement, the Escrow Agreement or the by Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by based on such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyadvice.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement The Holders shall severally (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata its Proportionate Share), severally and ) but not jointly, by each Company Securityholder will indemnify, defend jointly indemnify Representative and hold Representative harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any loss, liability or expense incurred without fraud on the part of Representative 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 Losses”) arising out of or in connection with the acceptance or administration of Representative’s execution duties hereunder, including the reasonable fees and performance expenses of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders legal counsel or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused advisors reasonably retained by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at At any time Shareholders representing at least seventy percent (70%) in interest of the Shareholders may, by giving thirty written consent, appoint a new representative as Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Shareholders of at least seventy percent (3070%) days’ notice in interest of the Shareholders must be delivered to Buyer and the Company Securityholders; In such eventParent and, if applicable, the successor Representative Escrow Agent not less than ten (10) days prior to such appointment. Such 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. For the purposes of this Section 9.01, “seventy percent (70%) in interest of the Shareholders” shall be selected by mean Shareholders representing in the Company Securityholders holding aggregate at least a majority 70% of Company Ordinary Shares the percentage Shareholders’ interests in the Aggregate Merger Consideration.
(on an as converted basisf) as of immediately prior In the event that Representative becomes unable or unwilling to the Closing. If the Representative is unable to perform his, her continue in his or its obligations under this Agreement orcapacity as Representative, or if Representative resigns as a Representative, Holders representing at least seventy percent (70%) in interest of the Holders may, by written consent, appoint a new representative as Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of at least seventy percent (70%) in interest of the Holders must be delivered to Parent and, if applicable, the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the case of a Representative that consent or the date such consent is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contraryreceived by Parent and, if applicable, the Escrow Agent.
(g) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Representative resigns death, incompetency, bankruptcy or otherwise is unable to perform its obligations as suchliquidation of any Holder, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal consummation of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementMerger.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests The Representative shall serve as representative of the Company Securityholders Shareholders (with respect to all matters arising under this Agreement or their interest in the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, Amounts) with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for to take all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of actions under this Agreement and the Escrow Agreement in relating to claims for indemnification asserted by any Parent Indemnified Party hereunder. Such power and authority shall include, without limitation, the absolute discretion power and authority (1) to negotiate, settle, compromise and otherwise handle all claims for indemnification made by any Parent Indemnified Party pursuant to Article 8 hereof, (2) to direct the payment of claims from the Escrow Fund and/or the 280G Escrow Fund and to use the Shareholders’ Representative Amount to do so as determined by the Representative, and (B3) represent such Company Securityholder to do each and such Company Securityholder’s successors with respect every act and exercise any and all rights which the Representative is permitted or required to all matters arising do or exercise under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, Shareholders will be bound by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative in connection with claims for indemnification asserted by Parent Indemnified Parties under this Agreement, the Escrow Agreementand Parent shall be entitled to rely on any notice or communication to or by, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholderdecision, and all defenses which may be available action, failure to any Company Securityholder to contestact within a designated period of time, negate agreement, consent, settlement, resolution or disaffirm the action of the Representative taken in good faith under this Agreementinstruction of, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing mattersRepresentative. Without limiting the generality of the foregoing, by virtue each decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the approval Representative will constitute a decision of this Agreement all of the Shareholders with respect to their interest in the Escrow Amounts, and the Acquisition (will be final, binding and no conclusive upon each Shareholder, and Parent may rely upon any such decision, action, failure to act within a designated period of such Company Securityholder)time, each Company Securityholder grants agreement, consent, settlement, resolution or instruction of the Representative full power as being that of each and authority to interpret all the terms and provisions of this Agreement every Shareholder. Parent and the Escrow Agreement and to consent Agent are hereby relieved from any liability to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon Shareholder for any signature believed acts done by it to be genuinein accordance with such decision, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf act, consent or instruction of the applicable Company Securityholder or other partyRepresentative.
(db) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action Any expenses or omission liabilities incurred by the Representative in connection with the performance of its duties in such capacity under this Agreement or the Escrow Agreement shall be reimbursed to the Representative from the Shareholders’ Representative Amount. Without limiting in any way the provisions of this Section 8.9(b), at such time as the Shareholders’ Representative Amount has been exhausted in addition to any other rights or remedies, the Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Representative against any portion of the Escrow Amounts to be paid to the Shareholders on a pro rata basis.
(c) In the event of a vacancy in the position of Representative (or resignation, refusal or incapability of the Representative to serve), holders of a majority in interest of the cash then in the Escrow Fund shall appoint a new Representative by written consent in accordance with the terms of this Agreement within 10 Business Days after such vacancy and immediately thereafter send to Parent notice and a copy of the written consent appointing such new Representative signed by such holders of a majority in interest of the cash then in the Escrow Fund; provided, however, that if the vacancy continues for more than 10 Business Days, Parent may appoint a successor Representative who will thereafter be the Representative hereunder and subject hereto unless and until such time as a replacement Representative is appointed by such holders of a majority in interest of the cash then in the Escrow Fund. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Shareholders, other than the Dissenting Shareholders, at their addresses last known to Parent, which will be the address set forth in the Spreadsheet unless Representative provides notice to Parent of a different address in the manner described in Section 9.3. Any successor Representative appointed by the holders of a majority interest of the cash then in the Escrow Fund (or by Parent as provided above) must have been a securityholder of the Company prior to the Effective Time or, in the case of a securityholder that is an entity, a partner, employee or affiliate of a securityholder of the Company prior to the Effective Time, or must be a professional stockholder representative firm.
(d) The Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of the Company’s former officers and employees who are employed by Parent or its Affiliates for purposes of performing its duties and exercising its rights hereunder. The Representative shall treat confidentially and not use or disclose the terms of this Agreement or any nonpublic information from or about Parent, Surviving Corporation, or any Parent Indemnified Party to anyone (except to the Shareholders or the Representative’s services pursuant employees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially). The Representative shall enter into a separate confidentiality agreement (in form and content reasonably acceptable to Parent) prior to being provided access to such information if requested by Parent.
(e) The Representative shall distribute based on their respective Pro Rata Portions to the Shareholders, other than the Dissenting Shareholders, any portion of (i) the Escrow Fund and/or 280G Escrow Fund that becomes available for distribution in accordance with the terms of the Escrow Agreement and (ii) the Shareholders’ Representative Amount that is available for distribution upon the termination of the Escrow Agreement (the “Per Share Post-Closing Consideration”).
(f) By its signature to this Agreement, subject to the occurrence of the Closing and the additional condition set forth in the last sentence of this Section 8.9(f), the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement. Representative’s agreement to serve in such capacity shall not establish a fiduciary relationship between Representative and any agreements ancillary hereto while acted other party (including the Shareholders or the Parent Indemnified Parties). Representative shall not be personally liable to any party for any action taken in good faith, such capacity except for liability directly resulting from to the extent arising as a result of Representative’s willful misconduct or gross negligence. By virtue ; and Representative shall in no event be liable for special, indirect or consequential loss or damage of any kind whatsoever (including lost profits) even if Representative has been advised of such loss or damage and regardless of the approval form of action. Representative undertakes to perform only such duties as are expressly set forth herein. The duties and responsibilities of the Representative hereunder shall be determined solely by the express provisions of this Agreement and the Acquisition Agreement, and no other act further duties or responsibilities shall be implied. The Representative shall not have any liability under nor duty to inquire into the terms and provisions of any Company Securityholderagreement or instructions, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share)other than outlined in this Agreement. The Representative may rely, severally and shall not jointlybe liable for acting or refraining from acting, upon any written notice, instruction or request furnished to it hereunder and believed by each Company Securityholder will indemnify, defend it to be genuine and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused signed or presented by the gross negligence proper party or willful misconduct parties. The Representative shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Representative may perform its duties hereunder directly or through agents or attorneys and may consult with counsel and accountants to be selected and retained by it. The Representative shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel or accountants. None of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by provisions contained in this Agreement shall require the Representative to the extent attributable to such gross negligence use or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf in the performance of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in of its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative duties or the termination exercise of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders)powers hereunder.
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Chart Industries Inc)
Representative. (a) In order B▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed, authorized and empowered to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement for the benefit of Seller and the Escrow AgreementEquityholders, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, exclusive agent and attorney-in-fact to act on behalf of Seller and each Company Securityholder. Each Company Securityholders agreesEquityholder, by virtue in connection with and to facilitate the consummation of the approval of transactions contemplated hereby, including pursuant to the Related Agreements, which will include the power and authority:
(i) to execute and deliver the Related Agreements (with such amendments, modifications or changes therein as to which the Representative, in its sole discretion, will have consented) and to agree to such amendments or modifications thereto as the Representative, in its sole discretion, determines to be desirable;
(ii) to negotiate, execute and deliver such waivers, modifications, amendments, consents and other documents required or permitted to be given in connection with this Agreement and the Acquisition Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable;
(iii) to take any action on behalf of Seller and no act of such Company Securityholder)the Equityholders or Seller or any Equityholder that may be necessary or desirable, that all actions taken as determined by the Representative under this Agreementin its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Section 2.5;
(iv) to collect and receive all moneys and other proceeds and property payable to the Representative, Seller or the Equityholders from Purchaser as described herein or in the Related Agreements, and, subject to any applicable withholding retention laws, and net of any out-of-pocket expenses incurred by the Representative, the Escrow AgreementRepresentative will disburse and pay, or except as otherwise provided hereunder, any amount payable to the Representative Engagement Agreement shall be binding upon Equityholders to each Equityholder to the extent of such Company Securityholder Equityholders’ Pro Rata Portion of such amount;
(v) as the Representative, to enforce and such Company Securityholder’s successors as if expressly confirmed protect the rights and ratified in writing by such Company Securityholder, interests of Seller and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm enforce and protect the action rights and interests of the Representative taken arising out of or under or in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights any manner relating to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement Related Agreements or the Escrow Agreement transactions provided for herein or therein, and to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under the Related Agreements or this Agreement, including actions in connection with the Escrow Agreement, determination of any payment due hereunder or the Representative Engagement Agreement (including entering into any amendment of same) thereunder for and on behalf of the Company SecurityholdersSeller or Equityholders, including defending (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by an MMT Party or any other Person, or by any federal, state or local Governmental Authority against the Representative or Seller or any Equityholder, and receive process on behalf of Seller or any or all indemnity claims pursuant Equityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative will determine to Article 9be appropriate, consenting and give receipts, releases and discharges with respect to, compromising any such claim, action, proceeding or settling all such indemnity claimsinvestigation; (C) file any proofs of debt, conducting negotiations with Buyer claims and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of petitions as the Representative specified in may deem advisable or contemplated by necessary; (D) settle or compromise any claims asserted under this Agreement or the Escrow Agreement Related Agreements; and engaging counsel (E) file and accountants prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Representative will not have any obligation to take any such actions, and will not have any liability for any failure to take any such actions;
(vi) to refrain from enforcing any right of Seller, any Equityholder or the Representative arising out of or under or in any manner relating to this Agreement, the Related Agreements or any other agreement, instrument or document in connection with the foregoing matters. Without limiting foregoing; provided, however, that no such failure to act on the generality part of the foregoingRepresentative, except as otherwise provided in this Agreement, will be deemed a waiver of any such right or interest by virtue the Representative or by such Seller or Equityholder unless such waiver is in writing signed by the waiving party or by the Representative; and
(vii) to make, execute, acknowledge, deliver and receive all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Related Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(b) All actions decisions and instructions of the approval Representative will be conclusive and binding upon Seller and all of this Agreement and the Acquisition (Equityholders and no act of such Company Securityholder)Seller, each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to Equityholder or any amendment hereof or thereof other Person acting on behalf of such Company Securityholder Seller will have any claim or cause of action against the Representative, and the Representative will have no liability to Seller, any Equityholder or any other Person acting on behalf of Seller or any Equityholder, for any action taken, decision made or instruction given by the Representative in connection with this Agreement or any Related Agreements, except in the case of the Representative’s own gross negligence or willful misconduct. In the performance of its successors. The duties hereunder, the Representative shall will be entitled to: (i) rely upon the Payment Spreadsheet, (ii) to rely upon any signature document or instrument reasonably believed by it to be genuine, accurate as to content and (iii) reasonably signed by Seller, any Equityholder, any MMT Party or any other Person. The Representative may assume that a signatory any Person purporting to give any notice in accordance with the provisions hereof has proper authorization been duly authorized to sign do so.
(c) The Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith; provided, that the Representative will have no obligation to act on behalf of Seller or the applicable Company Securityholder Equityholders. The Representative will at all times be entitled to rely on any directions received from Equityholders which collectively owned, as of immediately prior to the Closing, more than 75% of the equity securities of Seller; provided, that the Representative will not be required to follow any such direction, and will be under no obligation to take any action in its capacity as the Representative based upon such direction. The Representative will be entitled to engage such counsel, experts and other agents and consultants as it may deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of willful misconduct on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons. Notwithstanding anything to the contrary contained herein, the Representative in its capacity as such will have no fiduciary duties or other partyresponsibilities to Seller or any Equityholder and no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of Seller or any Equityholder will otherwise exist against or with respect to the Representative in its capacity as such.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required liable to advance its own funds Seller or any Equityholder hereunder or in connection herewith for any special, indirect, consequential, contingent, speculative, punitive or exemplary damages, or lost profits, diminution in value or any damages based on behalf any type of multiple of earnings, cash flow or similar measure or for any liabilities resulting from the Company Securityholders actions of Seller or otherwise. Furthermore, an Equityholder other than the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, acting in its determination, are sufficient capacity as such. The MMT Parties will have the right to protect the Representative against the costs, expenses and liabilities which may rely upon all actions taken or omitted to be incurred taken by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, including the calculations required by Section 2.5, all of which actions or omissions will be legally binding upon Seller and the Equityholders. The grant of authority provided for herein (i) is coupled with an interest and will be irrevocable by any act of Seller or by operation of Law and all of the indemnities, immunities, authority and power granted to the Representative hereunder will survive the death, incompetency, bankruptcy or liquidation of Seller and (ii) as otherwise determined by will survive the Advisory Group. The Representative is not acting as a withholding agent Closing or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting termination of this Agreement or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. Related Agreements.
(e) The Representative will not be liable to Seller or any Equityholder for any loss of principal of the act done or omitted hereunder as Representative Expense Fund while acting in good faith other than as a result of its faith. Seller and the Equityholders will indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred without gross negligence or willful misconductmisconduct on the part of the Representative or any of its Affiliates and any of their respective partners, members, attorneys, accountants, advisors or controlling Persons and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative. Each MMT Party (on its behalf and on behalf of its Affiliates) acknowledges that the Representative is party to this Agreement solely for purposes of serving as the “Representative” hereunder and no claim will be brought by or on behalf of an MMT Party or any of its Affiliates against the Representative with respect to this Agreement or the agreements or transactions contemplated hereby or any certificate, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” at or prior to the Closing will not be deemed to require performance by, or be an agreement of, the Representative unless performance by the Representative is expressly provided for in such covenant or the Representative expressly so agrees).
(f) All out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement or the Related Agreements will be paid out of the Representative Fund from time to time, as and when such fees and expenses are incurred. In the event that the amount of the Representative Fund is insufficient to satisfy all expense reimbursement and indemnification payments to which the Representative is entitled pursuant to this Section 9.12 upon written notice from the Representative to the Equityholders as to the existence of a deficiency toward the payment of any such expense reimbursement or indemnification amount, as the case may be, each Equityholder will promptly deliver to the Representative full payment of such Equityholder’s Pro Rata Portion of the amount of such deficiency. The Representative will hold these funds separate establish such terms and procedures for administering, investing and disbursing any amounts from the Representative Fund as it may determine in its corporate fundsreasonable judgment to be necessary, will not use these funds for its operating expenses advisable or desirable to give effect to the provisions of this Agreement. If any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion balance of the Representative’s responsibilitiesRepresentative Fund remains undisbursed at such time as all disputes, claims and other matters relating to the transactions contemplated by this Agreement and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then the Representative will deliver any distribute to each Equityholder, by wire transfer of immediately available funds to an account designated by each Equityholder, such Equityholder’s Pro Rata Portion of such remaining balance of the Representative Expense Fund Fund.
(g) Any resignation by the Representative will not be effective until a new Representative will be appointed by Equityholders who held more than 75% of the aggregate equity securities of Seller, immediately prior to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)Each Supporting Stockholder hereby irrevocably grants to, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereofappoints, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact (with full power of each Company Securityholder. Each Company Securityholders agreessubstitution), for and in the name, place and stead of such Supporting Stockholder, with the same effect as if taken by virtue such Supporting Stockholder, with full power and authority to take any and all actions and execute any and all documents and agreements in such Supporting Stockholder’s name, place and stead and on its behalf, with the same effect as if such action were taken or such document or agreement were executed by such Supporting Stockholder, in connection with any matter or thing relating to the Merger, the Merger Agreement, the Collateral Agreements and any of the approval of this transactions contemplated thereby, including, without limitation, the power and authority to (i) institute, make or pursue claims, counterclaims or defenses, (ii) enter into, modify, amend, implement or waive any contracts, including the Merger Agreement and the Acquisition Collateral Agreements, (and no act of such Company Securityholder)iii) compromise, that all actions taken by surrender or settle any disputes or claims or make any other determination or take any other action or assert or compromise any claim relating to the Representative under this Merger Agreement, the Escrow Collateral Agreements and any of the transactions contemplated thereby, including any adjustments in connection with the determination of the Actual Closing Working Capital, Actual Closing Cash, Actual Closing Indebtedness and Actual Seller Transaction Expenses pursuant to Sections 2.7 and 2.8 of the Merger Agreement, (iv) receive and deliver at the Closing certificates and other documents, (v) give and receive notices by and on behalf of such Supporting Stockholder, (vi) enter into amendments of the Merger Agreement and the Collateral Agreements; provided, that Representative will not, as a result of such appointment, be granted the power and authority to take any action or enter into any agreement that (x) agrees or subjects any Supporting Stockholder to personal liability for claims or other liabilities, except as expressly provided herein, or (y) changes or modifies the Representative Engagement Agreement shall be binding upon ownership percentage in Holding (as of immediately prior to the Effective Time) of such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company SecurityholderSupporting Stockholder, and all defenses which may be available to (vii) receive service of process in connection with any Company Securityholder to contest, negate or disaffirm claims under the action of the Representative taken in good faith under this Merger Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereby accepts its appointment as “Representative” hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees cannot be removed by the Supporting Stockholders or Holding, respectively, except upon delivery to be bound Representative of a written instrument signed by all obligations Supporting Stockholders having a majority of the ownership percentage in Holding. Representative under this Agreement may resign for any reason or no reason, at any time. If Representative resigns or is so removed, then a replacement Representative shall be designated by the Escrow Agreement to which it is Supporting Stockholders (or their successors-in-interest) having a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf majority of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all ownership percentage in Holding. Any such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and replacement Representative will have the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyhereunder.
(d) Certain Company Securityholders have entered into an engagement agreement with Any Person (including Parent and Merger Sub) shall be entitled to rely, without any investigation or inquiry by such Person, upon all actions, notices, communications and determinations by Representative on behalf of the Supporting Stockholders as having been taken upon the authority of the Supporting Stockholders. Any actions, notices, communications and determinations by Representative taken on behalf of the Supporting Stockholders shall be conclusively deemed to provide direction to be the Representative in connection with its services under this Agreement actions, notices, communications and determinations of the Escrow Agreement Supporting Stockholders.
(such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). e) Neither the Representative nor any of its members, managers, directors, officers, contractorsemployees, agents and employees nor agents, partners, representatives or Affiliates will have any member of liability to Holding or the Advisory Group Supporting Stockholders with respect to actions taken or omitted to be taken by Representative in such capacity (collectivelyor any of its employees, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind agents, representatives or Affiliates in connection therewith), except with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative, its officers, employees, agents, partners, representatives and Affiliates shall be entitled to full reimbursement from the Supporting Stockholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by Representative Losses may be recovered in such capacity (or any of its officers, employees, agents, partners, representatives or Affiliates in connection therewith), and to full indemnification by the Supporting Stockholders (pro rata to their interests) against any Losses arising out of actions taken or omitted to be taken in its capacity as Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions except for those arising out of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such ’s gross negligence or willful misconduct), including, without limitation, the costs and expenses of investigation and defense of claims (including, without limitation, from funds received by it in its capacity as Representative or funds to be distributed to the Supporting Stockholders under the Merger Agreement at its direction). In no event will the Representative be required to advance its own funds on behalf furtherance of the Company Securityholders or otherwise. Furthermoreforegoing indemnification, the Supporting Stockholders agree that Representative shall not have the power and authority to set aside and retain additional funds paid to or received by it, or direct payment of additional funds to be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement paid to the contrarySupporting Stockholders, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed Merger Consideration pursuant to the foregoing within twenty Merger Agreement at Closing or thereafter to satisfy such obligations (20) days, then, without any further action of including to establish such reserves as Representative determines in good faith to be appropriate for such costs and expenses whether or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation not then known or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementdeterminable).
(f) Buyer will Representative shall have no liability duties or responsibilities except those expressly set forth herein and in the Merger Agreement and Collateral Agreements. Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem appropriate in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the Company Securityholders or otherwise arising out opinions and advice of the acts or omissions of such Persons. Representative or any disputes with Representative. Buyer may rely entirely on its dealings withany notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be genuine and notices to and from, the Representative to satisfy any obligations it might have under this Agreement been signed or the Escrow Agreementpresented by a proper person or persons.
(g) After the ClosingThe relationship created herein is not to be construed as a joint venture or any form of partnership between or among Representative or any Supporting Stockholder for any purpose of federal or state law, Buyer shall afford the including without limitation, federal or state income tax purposes. Neither Representative nor any of its Affiliates owes any fiduciary or other duty to any Supporting Stockholder. Each Supporting Stockholder acknowledges that it understands that Representative and its accountantsAffiliates have a direct and/or indirect financial interest in the Merger, counsel including by virtue of its ownership of shares of Common Stock of Holding and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records by virtue of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, fees that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the payable to Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense AmountMerger pursuant to that certain Management Agreement, dated May 1, 2013, executed by Representative, Holding, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingCompany.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of By the approval of this Agreement pursuant to Delaware Law, the Stockholders and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints Optionholders hereby irrevocably appoint the Representative as its exclusive agent for such Company Securityholder the representative, agent, proxy, and as such Company Securityholder’s true and lawful attorney-in-fact effective upon for all the ClosingStockholders and Optionholders for all purposes under this Agreement including, with without limitation, the full power and authority in such Company Securityholder’s name on the Stockholders’ and on such Company Securityholder’s behalf for all purposes Optionholders’ behalf: (i) to consummate the transactions contemplated under this Agreement including, without limitation, the execution and delivery of any agreements, instruments, and documents contemplated hereby or executed in connection with herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement and any agreements ancillary hereto including other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to (A) act according receive and disburse to the terms Stockholders and Optionholders any funds received on behalf of the Stockholders and Optionholders under this Agreement Agreement, or otherwise, (iv) to withhold any amounts received on behalf of the Stockholders and Optionholders pursuant to this Agreement, or otherwise to satisfy any and all obligations or liabilities incurred by the Escrow Agreement Representative in the absolute discretion performance of its duties hereunder, including, without limitation, in connection with any obligation of the RepresentativeRepresentative to make a payment to the Purchaser pursuant to Section 2.03(f) hereof, (Bv) represent such Company Securityholder to execute and such Company Securityholder’s successors with respect deliver any amendment or waiver to all matters arising under this Agreement and the Escrow Agreement, and any other agreements, instruments, and documents contemplated hereby or executed in connection herewith (Cwithout the prior approval of the Stockholders or Optionholders) receive all notices and service of process; and (Dvi) in general to do take all things and other actions to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated be taken by or deemed advisable on behalf of the Stockholders and Optionholders in connection with this Agreement, and any other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The Stockholders and Optionholders, by approving this Agreement, further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the Escrow Agreement or consent of the Representative Engagement Agreementand shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder or Optionholder. Notwithstanding All decisions and actions by the foregoingRepresentative shall be binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall have no obligation to act on behalf of duties or obligations hereunder except those forth herein and such duties and obligations shall be determined solely by the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval express provisions of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power Each Stockholder and Optionholder hereby severally, for itself only and not jointly, agrees to indemnify and hold harmless the Representative against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by the Representative in connection with any action, suit or proceeding to which the Representative is made a party by reason of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted fact it is or was acting as the Representative pursuant to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act terms of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of Neither the Representative under this Agreement nor any agent employed by it shall incur any liability to any Stockholder or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, Optionholder by virtue of the approval failure or refusal of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power for any reason to consummate the transactions contemplated hereby or relating to the performance of its duties hereunder, except for actions or omissions constituting intentional and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsknowing fraud. The Representative shall be entitled to: (i) rely upon have no liability in respect of any action, claim or proceeding brought against the Payment Spreadsheet, (ii) rely upon Representative by any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of Stockholder or Optionholder if the applicable Company Securityholder Representative took or other partyomitted taking any action in good faith.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement Upon final resolution of all liabilities and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member obligations of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses Stockholders (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iiiOptionholders pursuant to Section 2.03(f) do not prevent the Representative Group from seeking any remedies available to them at law and full reimbursement of all obligations or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement the performance of its duties hereunder, the Representative shall distribute all funds held by it on behalf of the Stockholders and Optionholders to the contraryStockholders and Optionholders, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting it being understood and agreed that such distribution(s) shall be the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal responsibility of the Representative only and that neither the Purchaser nor the Surviving Corporation shall have any obligation to ensure that such distribution is, or the termination of this Agreementdistributions are, made.
(e) The Representative parties agree that the fact that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP may resign at any time by giving thirty (30) days’ notice to Buyer and have represented the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If Closing shall not prevent ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP from representing the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amountany matters involving, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive including without limitation any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative disputes with, any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of parties after Closing.
Appears in 1 contract
Representative. Mr. ▇▇▇▇ ▇▇▇ll, by virtue of the Merger and the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the Shareholders (awith full power of substitution in the premises) In order in connection with the indemnity provisions of Article 11 as they relate to efficiently administer the obligations specified Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Jabil any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement and efficiently represent (the interests above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Company Securityholders Jabil Shares received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any of the Shareholders and their respective affiliates or any other person with respect to all matters arising any action taken or omitted to be taken by the Representative under or in connection with this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act in his capacity as representative of such Company Securityholder)Shareholders unless such action or omission results from or arises out of fraud, and gross negligence, willful misconduct or bad faith on the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion part of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement . Jabil and the Escrow Agreement, (C) receive all notices Surviving Corporation and service each of process; their respective affiliates shall be entitled to rely on such appointment and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the treat such Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and duly appointed attorney-in-fact of each Company SecurityholderShareholder. Each Company Securityholders agrees, by virtue Shareholder who votes in favor of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted Merger pursuant to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of lawterms hereof, by such Company Securityholder’s death or disability or vote, without any other event further action, and (ii) shall survive each Shareholder who receives any Jabil Shares in connection with the delivery Merger, by acceptance thereof and without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of an assignment by any Company Securityholder of Jabil to enter into this Agreement is based, in part, on the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance appointment of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no representative to act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyShareholders.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Effective upon and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval Stockholder Approval, and without any further act of any of the Stockholders or Optionholders, the Representative is hereby irrevocably appointed as the representative, agent, proxy, and attorney in fact (coupled with an interest) for all the Stockholders and Optionholders for all purposes under this Agreement including the full power and authority on the Stockholders’ and Optionholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the Acquisition other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and no act disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Allocable Amount contemplated by Section 3.03 and claims for indemnification under Article XI), (iii) to receive and disburse to, or caused to be received or disbursed to, any Stockholder or Optionholder any funds received on behalf of such Company Securityholder)Stockholder or Optionholder under this Agreement (including, and for the consummation avoidance of doubt, any portion of the Acquisition Merger Consideration) or participating otherwise, (iv) to withhold any amounts received on behalf of any Stockholder or Optionholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Stockholders and Optionholders) any and all obligations or liabilities of any Stockholder, Optionholder or the Representative in the Acquisition performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Stockholders and receiving the benefits thereof, including the right to receive the consideration payable Optionholders) in connection with the Acquisitionadjustment of Allocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI), each Company Securityholder appoints (v) to execute and deliver any amendment or waiver to this Agreement and the Representative other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Stockholder or Optionholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as its exclusive agent for such Company Securityholder of the Closing and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and (vii) to take all other actions to be taken by or on such Company Securityholder’s behalf for all purposes of any Stockholder or Optionholder in connection with this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Stockholder and Optionholder. All decisions and actions by the Representative shall be binding upon each Stockholder and Optionholder, and no Stockholder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall have no duties or obligations hereunder, including any agreements ancillary hereto fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement.
(b) Effective upon and by virtue of the Stockholder Approval, and without any further act of any of the Stockholders or Optionholders, the Representative and its Non-Recourse Parties shall be indemnified, held harmless and reimbursed by each Stockholder and Optionholder severally (based on each Stockholder’s and Optionholder’s Indemnity Allocation Percentage), and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or incurred by the Representative and its Non-Recourse Parties in connection with any claim, action, suit or proceeding to (A) act according which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement and (including, for the Escrow Agreement in the absolute discretion avoidance of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreementdoubt, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act satisfaction of payment obligations (on behalf of the Company Securityholders, except as expressly provided herein, Stockholders and Optionholders) in connection with the Escrow Agreement adjustment of Allocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI). Any and in all amounts paid or incurred by the Representative Engagement Agreementand its Non-Recourse Parties in connection with any claim, action, suit or proceeding to which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement are on behalf of the Stockholders and Optionholders (and, not for purposes of claritythe avoidance, there are no obligations on behalf of the Representative in any ancillary agreementother capacity, schedule, exhibit as a Stockholder or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholderotherwise), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of Neither the Representative under this Agreement nor any of its Non-Recourse Parties shall incur any liability to any Stockholder or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, Optionholder by virtue of the approval failure or refusal of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority or any of its Non-Recourse Parties for any reason to interpret all consummate the terms and provisions transactions contemplated hereby or relating to the performance of this Agreement and the Escrow Agreement and to consent to any amendment hereof their duties hereunder, except for actions or thereof on behalf of such Company Securityholder and its successorsomissions constituting Fraud. The Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any Stockholder or Optionholder, regardless of the legal theory under which such liability or obligation may be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it sought to be genuineimposed, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder whether sounding in contract or other partytort, or whether at law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith.
(d) Certain Company Securityholders have entered into an engagement agreement with If the Representative pays or causes to provide direction to be paid any amounts (on behalf of the Representative Stockholders and Optionholders) in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member obligation or liability of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action a Stockholder or omission by the Representative Optionholder in connection with the Representative’s services pursuant to this Agreementtransactions contemplated hereby (including, for the avoidance of doubt, the adjustment of Allocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI), any such payments and any agreements ancillary hereto while acted the reasonable expenses of the Representative incurred in good faithadministering or defending the underlying dispute or claim may be reimbursed, except for liability directly resulting when and as incurred, from the Representative’s willful misconduct or gross negligence. By virtue of Representative Holdback Amount (and, if not so reimbursed from the approval of this Agreement Representative Holdback Amount, the Representative shall be indemnified, held harmless and the Acquisition reimbursed by each Stockholder and no other act of any Company Securityholder, each Company Securityholder Optionholder severally (based on such Company Securityholdereach Stockholder’s Pro Rata Shareand Optionholder’s Indemnity Allocation Percentage), severally and not jointly, by each Company Securityholder will indemnifyfor such amount(s)). The Representative may, defend in its sole and hold harmless the Representative Group (in the case absolute discretion, distribute, or caused to be distributed, any or all of the Advisory Group, in their capacity as such) 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 Losses”) arising out of funds received or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused held by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds it on behalf of the Company Securityholders Stockholders and Optionholders (including, for the avoidance of doubt, any portion of the Merger Consideration) to one or more Stockholders or Optionholders at any time after the date hereof, which such distribution(s) of funds may be different (i.e., with respect to amount, timing, conditionality or otherwise) for each Stockholder and Optionholder. FurthermoreUpon full reimbursement of all expenses, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and obligations or liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement the performance of its duties hereunder, the Representative shall distribute, or caused to be distributed, all remaining funds held by it on behalf of the Stockholders and Optionholders to the contraryStockholders and Optionholders; provided, that to ensure compliance with Treasury Regulation §1.409A-3(i)(5)(iv), the Optionholders shall not be entitled to receive any restrictions or limitations on liability or indemnification obligations ofpayment, or provisions limiting the recourse against non-parties, otherwise applicable and no payment shall be made to the Company Securityholders set forth elsewhere Optionholders, in this Agreement are not intended to be applicable connection with the transaction contemplated hereby later than the date which is five (5) years after the Closing Date (it being understood that the Stockholders may receive payments after the date which is five (5) years after the Closing Date, including, for the avoidance of doubt, amounts that, if paid prior to the indemnities provided date which is five (5) years after the Closing Date, would have been paid to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this AgreementOptionholders).
(e) The Representative may resign at any time by giving thirty (30) days’ notice Notwithstanding anything to Buyer and the Company Securityholders; In such eventcontrary set forth herein, the successor Representative and its Affiliates shall not be selected liable for any Loss to any Stockholder or Optionholder for any action taken or not taken by the Company Securityholders holding at least Representative or for any act or omission taken or not taken in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by the Purchaser or the Merger Sub or the Surviving Corporation.
(f) Except as may have been expressly and specifically agreed to in writing by a majority of Company Ordinary Shares Stockholder or Optionholder, on the one hand, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (“K&E LLP”), on an as converted basis) as of immediately prior to the Closing. If other hand, and except for the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) K&E LLP has not and is not representing, and shall not be deemed to have represented any Stockholder or Optionholder in connection with the Representative resigns or otherwise is unable to perform its obligations as suchtransactions contemplated hereby, and (ii) no successor Representative K&E LLP has not and is appointed pursuant to the foregoing within twenty not providing any advice or counsel (20) days, then, without any further action of including legal advice or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documentscounsel), and (ii) all Company personnel as reasonably identified by the Representative, in each caseshall not be deemed to have provided counsel or advice, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries any Stockholder or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity Optionholder in connection with the transactions contemplated hereby. Each Stockholder and Optionholder agrees that K&E LLP may represent the Representative Expense Amountin any matter related to the transaction completed hereby including matters which maybe adverse to such Stockholders or Optionholders and, in furtherance thereof, each Stockholder and Optionholder consents to, and has no tax reporting waives, without limitation, restriction or income distribution obligations. The Company Securityholders will not receive condition of any interest kind, any actual or earnings on the Representative Expense Fund and irrevocably transfer and assign potential conflict or other actual or potential objection with respect to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal K&E LLP’s representation of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund matter related to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingtransaction completed hereby.
Appears in 1 contract
Sources: Merger Agreement (Sparton Corp)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Effective upon and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval Holder Approval and/or delivery of this Agreement the Holder Letters of Transmittal, and the Acquisition (and no without any further act of such Company Securityholder), and the consummation any of the Acquisition or participating in the Acquisition and receiving the benefits thereofHolders, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative shall be hereby appointed as its exclusive agent for such Company Securityholder the representative of the Holders and as such Company Securityholder’s true and lawful the attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name agent for and on such Company Securityholder’s behalf of each Holder for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent will take such Company Securityholder and such Company Securityholder’s successors with respect actions to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions be taken by the Representative under this Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) executing and delivering this Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Holder as compared to other Holders shall require the prior written consent of such Holder), (ii) taking all actions and making all filings on behalf of such Holders with any Governmental Body or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (iii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Holders, (iv) satisfying from the Escrow Holdback Shares costs, expenses and/or liabilities incurred by Representative in its capacity as the Representative and otherwise in accordance with this Agreement, and (v) taking all other actions that are either necessary or appropriate in the judgment of Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. Representative hereby accepts such appointment. Representative shall use commercially reasonable efforts based on contact information available to the Representative Engagement to keep the Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of Representative hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each such Holder, and Parent and the Surviving Company Securityholder may rely upon any such decision, act, consent or instruction of Representative as being the decision, act, consent or instruction of each and every such Holder. Parent and the Surviving Company Securityholder’s successors as if expressly confirmed and ratified shall be relieved from any liability to any Person for any acts done by them in writing accordance with such decision, act, consent or instruction of Representative.
(c) Representative will incur no liability with respect to any action taken or suffered by any Holder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Company SecurityholderRepresentative to be genuine and to have been signed by such Holder (and shall have no responsibility to determine the authenticity thereof), and nor for any other action or inaction, except the gross negligence, bad faith or willful misconduct of Representative. In all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith questions arising under this Agreement, the Escrow Agreement or Representative may rely on the advice of outside counsel, and the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall will not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent liable to any amendment hereof Holder for anything done, omitted or thereof suffered in good faith by Representative based on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyadvice.
(d) Certain Company Securityholders have entered into an engagement agreement with the The Holders shall severally (each based on its Proportionate Share) but not jointly indemnify Representative to provide direction to the and hold Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholdersharmless against any loss, including their individual representativesliability or expense incurred without gross negligence, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action bad faith or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue on the part of the approval of this Agreement Representative and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the acceptance or administration of Representative’s execution duties hereunder, including the reasonable fees and performance expenses of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders legal counsel or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused advisors reasonably retained by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at At any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding Holders representing at least seventy percent (70%) in interest of the Holders may, by written consent, appoint another Person as Representative. Notice together with a majority copy of Company Ordinary Shares the written consent appointing such Person and bearing the signatures of Holders of at least seventy percent (on an as converted basis70%) as in interest of immediately the Holders must be delivered to Parent not less than 10 days prior to such appointment. Such appointment will be effective upon the Closing. If later of the Representative is unable to perform his, her or its obligations under this Agreement or, date indicated in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice 10 days after such consent is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified received by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for Parent. For the purposes of paying directlythis Section 9.01, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or “seventy percent (ii70%) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors Holders” shall mean Holders representing in the event of bankruptcy. As soon as practicable following the completion aggregate at least 70% of the Representative’s responsibilities, percentage interests in the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingAggregate Merger Consideration.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent transactions contemplated hereby, including (i) the interests determination of the Company Securityholders with respect Final Closing Adjustment, the Adjusted Purchase Price and any Earn-Out Consideration and (ii) the defense and/or settlement of any claims for which any Seller may be required to all matters arising under indemnify the Buyer pursuant to this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement each Seller hereby designates, nominates, constitutes and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company SecurityholderSeller’s true and lawful representative, attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waivedagent.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to Each Seller hereby authorizes the Representative Group hereunder: (i) shall be irrevocable to make all decisions relating to the determination of the Final Closing Adjustment and shall not be terminated by any act of any Company Securityholderthe Adjusted Purchase Price pursuant to Section 1.5 and the Earn-Out Consideration pursuant to Section 1.8, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive to take all action necessary in connection with the delivery defense and/or settlement of an assignment any claims for which any Seller may be required to indemnify the Buyer pursuant to Article VI hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of any Company Securityholder Seller by the terms of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The In the event that the Representative agrees becomes unable to perform such Person’s responsibilities hereunder or resigns from such position, the Sellers (acting by the vote of the Sellers who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares) shall select another representative to fill the vacancy of the Representative, and such substituted representative shall be deemed to be bound the Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) A decision, act, consent, instruction or action of the Representative, including any agreement between the Representative and the Buyer relating to the determination of the Final Closing Adjustment, the Adjusted Purchase Price, any Earn-Out Consideration or the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article VI hereof, shall constitute a decision, act, consent, instruction or action of all Sellers and shall be binding and conclusive upon each Seller and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every Seller. The Buyer and the Escrow Agent are hereby relieved from any Liability to any Seller for any acts done by all obligations them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) By his execution of this Agreement, each Seller agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Final Closing Adjustment, the Adjusted Purchase Price, any Earn-Out Consideration, the settlement of any claims for indemnification by the Buyer pursuant to Article VI or any other actions required or permitted to be taken by the Representative hereunder, and no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) no Seller shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf execution of the Company SecurityholdersRepresentative’s duties and responsibilities, including defending all indemnity claims pursuant to Article 9, consenting to, compromising except for fraud or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval willful breach of this Agreement and by the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsRepresentative. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectivelyFurthermore, the “Representative Group”) Sellers shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend indemnify and hold harmless the Representative Group for any damages (in the case including damages arising out of the Advisory Group, in their capacity as suchnegligence of the Representative) from arising out of the acceptance or administration of the Representative’s duties hereunder and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable fees and expenses incurred in the fulfillment of counsel the Representative’s duties and experts responsibilities. The Sellers shall, severally, not jointly, indemnify the Representative and their staffs hold the Representative harmless against any loss, liability or expense incurred without fraud or willful breach on the part of the Representative and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct administration of the Representative’s duties hereunder;
(iii) the provisions of this Section 1.9 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at Law for any breach of the provisions of this Section 1.9 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.9; and
(v) the provisions of this Section 1.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller’s rights hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(f) The Sellers recognize and intend that the power of attorney granted in Section 1.9:
(i) is coupled with an interest and is irrevocable; and
(ii) shall survive the death or incapacity of each of the Sellers.
(g) The Representative will reimburse shall be entitled to treat as genuine, and as the Company Securityholders the amount of such indemnified Representative Loss received document it purports to be, any letter, facsimile, telex or other document that is believed by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, genuine and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused telexed, telegraphed, faxed or cabled by the gross negligence a Seller or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received to have been signed and presented by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, a Seller.
(h) All expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion performance of the Representative’s responsibilities, the duties as Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. shall be borne and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside paid by the Company Securityholders at the time of ClosingSellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parexel International Corp)
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, The Shareholders each Company Securityholder irrevocably initially appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Representative with power of designation and assignment as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful proxy and attorney-in-fact effective upon the Closing, and agent with full power of substitution, to act solely and authority exclusively on behalf of, and in such Company Securityholder’s the name of, each Shareholder with the full power, without the consent of the Shareholders, to exercise the powers of the Representative under the provisions of this Agreement or the Ancillary Agreements (including the Escrow Agreement) and on such Company Securityholder’s behalf for to take all purposes actions necessary or appropriate in the judgment of the Representative in connection with this Agreement and any agreements ancillary hereto the Ancillary Agreements (including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by which shall include the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder power and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available authority to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by amend, modify, waive or provide consent with respect to, any act provision of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, Ancillary Agreements (including the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) to execute, deliver and accept such waivers and consents and to endorse and deliver any and all notices, documents, certificates or other papers to be delivered in connection with this Agreement and the Ancillary Agreements (including the Escrow Agreement), (iii) do not prevent to disburse any funds received hereunder or under the Escrow Agreement to each Shareholders, and (iv) to consummate the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable. In the event of death or incapacity of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Shareholders each irrevocably appoints ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Representative, without the consent of the Shareholders, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ appointment as the Representative Group from seeking shall be effective upon notification in writing to Buyer. In any remedies available to them at law or otherwise against Third Party Defense in which more than one Shareholder is an Indemnitor, the Company Securityholders; providedRepresentative shall act on behalf of all Shareholder Indemnitors, further, it being agreed that in the event that of a post-Closing Action, Buyer is entitled to discovery of documents from the Shareholders relevant to such Action as if such Shareholders were parties to such Action, notwithstanding the appointment of the Representative as the sole intermediary for other purposes. The Buyer and the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any such notices and other acts of the Representative Loss is finally adjudicated to have been directly caused as being legally binding acts of the Shareholders individually and collectively. The appointment and power of attorney granted by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative Shareholders to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take deemed coupled with an interest and all authority conferred hereby shall be irrevocable whether by death or incapacity of any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination occurrence of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingor events.
Appears in 1 contract
Representative. (a) In order to efficiently administer By virtue of the obligations specified in execution and delivery of a Joinder Agreement, and the adoption of this Agreement and efficiently represent the interests approval of the Company Securityholders Mergers by the Stockholders, each of the Indemnifying Parties shall be deemed to have agreed to appoint Fortis Advisors LLC as its exclusive agent and attorney-in-fact, as the Representative for and on behalf of the Indemnifying Parties to give and receive notices and communications in respect of indemnification claims under this Agreement to be recovered against the Escrow Fund, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to all matters arising under any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Escrow AgreementTransactions, by virtue and to take all other actions that are either (i) necessary or appropriate in the judgment of the approval of this Agreement and Representative for the Acquisition (and no act of such Company Securityholder), and the consummation accomplishment of the Acquisition foregoing or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (Aii) act according to specifically mandated by the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company SecurityholdersIndemnifying Parties, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees may resign at any time or such agency may be changed by the Stockholders from time to act as time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the representative, agent and attorneyRepresentative may not be removed unless holders of a two-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue thirds interest of the approval Escrow Fund agree to such removal and to the identity 84 of this Agreement and the Acquisition (and no act substituted agent. Notwithstanding the foregoing, in the event of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action a resignation of the Representative taken or other vacancy in good faith under this Agreementthe position of Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Agreement Fund. No bond shall be required of the Representative. Notices or communications to or from the Representative Engagement Agreement are waived.
(b) after the Closing shall constitute notice to or from the Indemnifying Parties. The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and shall not be terminated by any act survive the death, incompetence, bankruptcy or liquidation of any Company SecurityholderIndemnifying Party and shall be binding on any successor thereto, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder Indemnifying Party of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementFund.
(cb) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder Indemnifying Party or other party. A decision, act, consent or instruction of the Representative, including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties and each such Indemnifying Party’s successors as if expressly confirmed in writing by such Indemnifying Party, and all defenses which may be available to any Indemnifying Party to contest, negate, or disaffirm the actions of the Representative taken in good faith under this Agreement are waived. Parent may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by Parent in accordance with such decision, act, consent or instruction of the Representative.
(dc) Certain Company Securityholders Indemnifying Parties have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under this Agreement, the Escrow Agreement and the Escrow Representative Engagement Agreement (such Company SecurityholdersIndemnifying Parties, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur be liable for any liability to act done or omitted hereunder, under the Company Securityholders of any kind with respect to any action or omission by Escrow Agreement and under the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto Engagement Agreement as Representative while acted acting in good faith, except for liability directly resulting from . The Indemnifying Parties shall indemnify the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement Representative Group and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) from and harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs costs, judgments, amounts paid in settlement and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s execution and performance of this duties hereunder, under the Representative Engagement Agreement and or under any agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Representative, costs incurred in connection with seeking recovery from insurers, and any amounts required to be paid by the Representative to the Escrow Agent pursuant to the Escrow Agreement (“Representative Expenses”) in each case as such Representative Loss Expense is suffered or incurred; provided, that in the event that any such Representative Loss Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders Holders the amount of such indemnified Representative Loss received by the Representative Expense to the extent attributable to such gross negligence or willful misconduct. Such If not paid directly to the Representative Losses by the Indemnifying Parties, any such Representative Expenses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, Fund and (ii) second, from any distributions of the amounts in the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such remaining amounts would otherwise then be distributable to the Company SecurityholdersIndemnifying Parties (which, and (iii) directly for the avoidance of doubt, shall not include any amounts that remain held in the Escrow Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Representative to be paid from the Company SecurityholdersExpense Fund and the Escrow Fund, as this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses Expenses as they are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not nor does it prevent the Representative Group from seeking any remedies available to them it at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconductotherwise. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders Indemnifying Parties or otherwise. Furthermore, The Indemnifying Parties acknowledge and agree that the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities and immunities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any the termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability . The Representative shall be entitled to use the Company Securityholders or otherwise arising out Expense Fund in order to fund all Representative Expenses. Following the Expiration Date, the resolution of all indemnification claims made under this Agreement and the acts or omissions satisfaction of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and fromall such indemnification claims, the Representative shall have the right to satisfy any obligations it might have under this Agreement or recover Representative Expenses incurred in excess of the amounts in the Expense Fund and not previously recovered directly from the Indemnifying Parties from the Escrow Agreement.
(g) After Fund, prior to any distribution to the ClosingIndemnifying Parties, Buyer and prior to any such distribution, shall afford deliver to the Escrow Agent a certificate setting forth the Representative Expenses actually incurred and its accountantsnot previously recovered. For the avoidance of doubt, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice while this section allows the Representative to the Buyer, during the period be paid from the date a Claim Notice is delivered until all claims under Escrow Fund, this Section 8.7(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Claim Notice Representative Expenses as they are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each caseincurred, to the extent reasonably related to such claims under the Claim Notice; providedExpense Fund is insufficient or unavailable. A decision, howeveract, that (x) access to such booksconsent or instruction of the Representative, recordsincluding an amendment, documents and personnel will not unreasonably interfere with the normal operations extension or waiver of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement pursuant to Section 10.2 or any applicable LawSection 10.3, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf shall constitute a decision of the Company Securityholders).
(h) The Representative Expense Fund will Indemnifying Parties and shall be used for final, conclusive and binding upon the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement Indemnifying Parties; and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, Escrow Agent and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they Parent may otherwise have had in rely upon any such interest decision, act, consent or earnings. The Representative will not be liable for any loss of principal instruction of the Representative Expense Fund while acting in good faith other than as a result being the decision, act, consent or instruction of its gross negligence or willful misconductthe Indemnifying Parties. The Representative will hold these funds separate Escrow Agent and Parent are hereby relieved from its corporate fundsany liability to any person for any acts done by them in accordance with such decision, will not use these funds for its operating expenses act, consent or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion instruction of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) In order Subject to efficiently administer the obligations specified in terms and conditions of this Agreement Section 10.19, and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval Necessary Stockholder Approval and without any further action of this Agreement and any Stockholders, Optionholders or the Acquisition (and no act of such Company Securityholder)Company, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints Fortis Advisors LLC is designated as the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s the true and lawful attorney-in-fact and exclusive agent to act on behalf of the Stockholders and Optionholders for certain limited purposes, as specified herein. The Necessary Stockholder Approval will, to the maximum extent permitted under applicable Law (including DGCL § 251(b)), constitute knowing and irrevocable ratification and approval of such designation by the Stockholders and Optionholders, and authorization of the Representative to serve in such capacity (including the exclusive power to negotiate and settle any and all disputes with Buyer or Merger Sub under this Agreement, the Escrow Agreement and the Paying Agent Agreement) and will also constitute a reaffirmation, approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative on behalf of the Stockholders and Optionholders in this Agreement and the other documents delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement), in each case, whether entered into or taken before, on or after the date of such approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Common Stock as of immediately prior to the Effective Time (other than shares of Common Stock cancelled pursuant to Section 1.04(c) (such Persons, the “Majority Holders”). The designation of the Representative and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are coupled with an interest, and are irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution, liquidation or other inability to act of any of the Stockholders or Optionholders. In the event that a Representative has resigned or been removed in accordance with this Section 10.19(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the Closingwritten acceptance thereof by the new Representative. Written notice of any such resignation, with full power removal, or appointment of a Representative will be delivered by the Representative to Buyer promptly after such action is taken. The immunities and authority in such Company Securityholder’s name rights to indemnification shall survive the resignation or removal of the Representative and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and the Closing and/or any agreements ancillary hereto including to (A) act according to the terms termination of this Agreement and the Escrow Agreement in Agreement.
(b) The Representative will have such powers and authority as are necessary or appropriate to carry out the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect functions assigned to all matters arising it under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable other document delivered in connection with this Agreement, herewith (including the Escrow Agreement or and the Paying Agent Agreement); provided, however, that the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall will have no obligation to act on behalf of the Company Securityholders, Stockholders or Optionholders except as expressly provided herein, herein or in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure ScheduleSchedules. The Representative agrees to act as Company, the representativeSurviving Corporation, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agreesBuyer, by virtue of Merger Sub, the approval of this Agreement Escrow Agent, the Paying Agent and the Acquisition (and no act of such Company Securityholder), that all Firm will be entitled to rely on the actions taken by the Representative under this Agreement, without independent inquiry into the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action capacity of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsso act. The Representative shall be entitled to: (i) rely upon the Payment SpreadsheetEstimated Closing Statement, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder Stockholder, Optionholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with . All actions, notices, communications and determinations by the Representative to provide direction to the Representative in connection with carry out its services functions under this Agreement and or the Escrow Agreement (such Company Securityholderswill conclusively be deemed to have been authorized by, including and will be binding upon, the Stockholders and Optionholders and their individual representativessuccessors as if expressly confirmed and ratified in writing by the Stockholders and Optionholders, collectively hereinafter referred and all defenses which may be available to as any Stockholder or Optionholder to contest, negate or disaffirm the “Advisory Group”)action of the Representative taken in good faith under this Agreement or the Escrow Agreement are waived. Neither the Representative nor any of its officers, directors, employees, partners (general or limited), members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity or advisors (collectively, the “Representative Group”) shall incur will have any liability to Buyer, Merger Sub, the Company Securityholders Company, the Surviving Corporation, the Stockholders or Optionholders, or any of their respective Affiliates, or any kind Person acting on behalf of the foregoing, with respect to any action actions taken, or omission omitted to be taken, by the Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith) under this Agreement or the Escrow Agreement. The Representative will be entitled to engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder or under the Escrow Agreement and (in the absence of bad faith on the part of the Representative’s services ) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative Group will be entitled to full reimbursement for all reasonable out-of-pocket expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and shall be indemnified, defended and held harmless against any liabilities, losses, damages, obligations, costs, claims, fees, judgments, fines, amounts paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) arising out of actions taken or omitted to be taken in its capacity as Representative, including the costs and expenses of investigation, defense, settlement or adjudication of any Proceeding, from the Stockholders and the Optionholders (including from funds to be distributed to the Stockholders or Optionholders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the Escrow Agreement and the Paying Agent Agreement)) (collectively, the “Representative Expenses”) and all payments required to be made under ARTICLE I are expressly subject to this Section 10.19(b). Each Stockholder and Optionholder will be responsible for its Pro Rata Portion of any amount owed to the Representative in accordance with this Section 10.19(b) based upon the Pro Rata Portion of the number of Aggregate Fully-Diluted Shares held by such Stockholder or Optionholder immediately prior to the Closing. In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, the Representative may recover Representative Expenses, first, from the Representative Holdback Amount, second from funds to be paid to the Stockholders or Optionholders as Merger Consideration pursuant to this Agreement after Closing, and third, directly from the Stockholders and Optionholders. The Stockholders and Optionholders acknowledge that the Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to Agreement, or the Company Shareholders transactions contemplated hereby or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwisethereby. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are The relationship created herein is not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation construed as a joint venture or removal any form of the Representative partnership between or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of among the Representative or any member Stockholder or Optionholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Advisory Group and the Closing and/or Representative nor any termination of this Agreement and the Escrow Agreementits Affiliates owes any fiduciary or other duty to any Stockholder or Optionholder.
(fc) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of The Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, Holdback Amount shall be held by the Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Representative for any Representative Expenses incurred pursuant to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory GroupRepresentative. The Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Representative Holdback Amount other than as a result of its gross negligence or willful misconduct. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, Holdback Amount and has no tax reporting or income distribution obligations. The Company Securityholders Stockholders and Optionholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer Holdback Amount and assign to the Representative any ownership right that they may otherwise have had in any such interest or earningsinterest. The Representative will not be liable for any loss of principal of may contribute funds to the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate Holdback Amount from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes consideration otherwise distributable to the Stockholders and will not voluntarily make these funds available to its creditors in the event of bankruptcyOptionholders. As soon as practicable following reasonably determined by the completion of Representative that the Representative’s responsibilitiesRepresentative Holdback Amount is no longer required to be withheld, the Representative will deliver any shall distribute the remaining of the Representative Expense Fund Holdback Amount (if any) to the Escrow Agent and/or the Paying Agent Agent, as applicable, for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. Stockholders and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingor Optionholders.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement Each THL Entity hereby designates and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and the Acquisition appoints (and no act each Permitted Transferee of each such Company Securityholder)THL Entities is hereby deemed to have so designated and appointed) each of Anth▇▇▇ ▇. ▇▇▇▇▇▇, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof▇▇ot▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 71 76 Kent ▇▇▇▇▇▇, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful ▇▇ his attorney-in-fact effective upon the Closing, with full power and authority in of substitution for each of them (the "THL Entities' Representative"), to serve as the representative of each such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and person to perform all actssuch acts as are required, including executing and delivering any agreements, certificates, receipts, instructions, notices authorized or instruments contemplated by or deemed advisable in connection with this Agreement, Agreement to be performed by such person and hereby acknowledges that the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have no obligation authorized) the other parties hereto to act disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on behalf any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company Securityholdersand to each Non-THL Shareholder.
(b) Each DLJ Entity hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, except Inc., as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and his attorney-in-fact with full power of substitution for each of them (the "DLJ Entities' Representative"), to serve as the representative of each Company Securityholdersuch person to perform all such acts (other than voting of shares of Common Stock) as are required, authorized or contemplated by this 72 77 Agreement to be performed by such person and hereby acknowledges that the DLJ Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each Company Securityholders agrees, such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by virtue such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder)DLJ Entities' Shareholders, provided that all actions taken notice thereof is given by the new DLJ Entities' Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable Company and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any to each other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this AgreementDLJ Entity Shareholder.
(c) The Representative agrees Each Merr▇▇▇ ▇▇▇c▇ ▇▇▇ity hereby designates and appoints (and each Permitted Transferee of each such Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities is hereby deemed to be bound by all obligations have so designated and appointed) KECALP Inc., as his attorney-in-fact with full power of substitution for each of them (the Representative under this Agreement or "Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative"), to serve as the Escrow Agreement representative of each such person to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling perform all such indemnity claimsacts as are required, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in authorized or contemplated by this Agreement or to be performed by such person and hereby acknowledges that the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative shall be entitled to: (i) rely upon the Payment Spreadsheetonly person authorized to take any action so required, (ii) rely upon any signature believed authorized or contemplated by it this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be genuine, coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (iiiand each such Permitted Transferee shall be deemed to have authorized) reasonably assume that the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative and are and will be entitled and authorized to give notices only to the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative may be chosen by a signatory has proper authorization to sign on behalf majority in interest of the applicable Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities' Shareholders, provided that notice thereof is given by the new Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative to the Company Securityholder or and to each other partyMerr▇▇▇ ▇▇▇c▇ ▇▇▇ity Shareholder.
(d) Certain Company Securityholders Each Management Shareholder hereby designates and appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have entered into an engagement agreement so designated and appointed) Paul ▇. ▇▇▇▇▇▇▇, ▇▇ his attorney-in-fact with full power of substitution for each of them (the Representative "Management Representative"), to provide direction serve as the representative of each such person to the Representative in connection with its services under perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided hereby acknowledges that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Management Representative shall not be required the only person authorized to take any action unless the Representative has been provided with fundsso required, security authorized or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred contemplated by the Representative in performing such actions. Notwithstanding anything in this Agreement to by each such person. Each such person further acknowledges that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended foregoing appointment and designation shall be deemed to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer coupled with an interest and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation death or removal incapacity of the Representative or any member of the Advisory Group such person. Each such person hereby authorizes (and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will each such Permitted Transferee shall be deemed to have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (yauthorized) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed other parties hereby to disregard any notice or other action taken by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred such person pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable except for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.the
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) In order to efficiently administer At the obligations specified in Closing, Silver Knot, LLC shall be constituted and appointed as the Representative. For purposes of this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of the approval of this Agreement and term “Representative” shall mean the Acquisition (and no act of such Company Securityholder)representative, and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints the Representative as its exclusive agent for such Company Securityholder and as such Company Securityholder’s true and lawful attorney-in-agent, proxy and attorney in fact effective upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf of Parent for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, with full power and authority on Parent’s behalf (Ci) receive all notices and service of process; and to consummate the transactions contemplated herein, (Dii) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices pay Parent’s expenses (whether incurred on or instruments contemplated by or deemed advisable after the date hereof) incurred in connection with the negotiation and performance of this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing(iii) to receive, the Representative shall have no obligation to act give receipt and disburse any funds received hereunder on behalf of or to Parent and to holdback from disbursement any such funds to the Company Securityholdersextent it reasonably determines may be necessary, except (iv) to execute and deliver any certificates representing the Units and execution of such further instruments as expressly provided Buyer shall reasonably request, (v) to execute and deliver on behalf of Parent all documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be taken by or on behalf of Parent in connection herewith, (vii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding any adjustment pursuant to Section 2.4, (viii) to waive any condition to the obligation of Parent to consummate the transactions contemplated herein, in the Escrow Agreement (ix) to give and in the Representative Engagement receive notices on behalf of Parent and (x) to do each and every act and exercise any and all rights which Parent is permitted or required to do or exercise under this Agreement. Parent, by executing this Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and irrevocably grants unto said attorney-in-fact of and agent full power and authority to do and perform each Company Securityholder. Each Company Securityholders agrees, and every act and thing necessary or desirable to be done in connection with the transactions contemplated by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, as fully to all intents and purposes as Parent might or could do itself. Parent agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action consent of the Representative taken in good faith under this Agreementand shall survive the liquidation, the Escrow Agreement or the Representative Engagement Agreement are waivedwinding up and dissolution of Parent.
(b) The power All decisions, actions, consents and instructions of attorney the Representative shall be final and all authority conferred under this Section 2.5 binding upon Parent and Parent shall not have any right to object, dissent, protest or otherwise contest the powerssame, immunities and rights except for fraud, bad faith or willful misconduct. Neither the Representative nor any agent employed by the Representative shall incur any liability to indemnification granted Parent relating to the performance of its duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. The Representative Group hereunder: (i) shall be irrevocable and not have by reason of this Agreement a fiduciary relationship in respect of Parent, except in respect of amounts actually received on behalf of Parent. The Representative shall not be terminated by required to make any act inquiry concerning either the performance or observance of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole terms, provisions or any fraction conditions of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of Parent shall cooperate with the Representative under this Agreement and any accountants, attorneys or the Escrow Agreement to which it is a party and shall take any and all actions which other agents whom the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or may retain to assist in carrying out Representative’s duties hereunder. Parent shall reimburse the Representative Engagement Agreement (including entering into any amendment of same) for all costs and on behalf of the Company Securityholdersexpenses, including defending all indemnity claims pursuant to Article 9professional fees, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyincurred.
(d) Certain Company Securityholders have entered into an engagement agreement with In the event that the Representative becomes unable to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with perform the Representative’s services pursuant to this Agreementresponsibilities or resigns from such position, and any agreements ancillary hereto while acted in good faithParent, except for liability directly resulting from or if Parent has been previously dissolved or liquidated the Representative’s willful misconduct or gross negligence. By virtue members of the approval of this Agreement and the Acquisition and no other act of any Company SecurityholderParent holding, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable prior to such gross negligence dissolution or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) firstliquidation, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as issued and outstanding membership interests of immediately prior Parent, shall select another representative to the Closing fill such vacancy and such substituted representative shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable be deemed to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and (ii) exercise the Escrow Agreementrights and powers of, and be entitled to the indemnity, reimbursement and other benefits of, the Representative.
(fe) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After Upon the Closing, Buyer Parent shall afford deliver to the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice an amount to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified be determined by the Representative, at its reasonable discretion (the “Representative’s Expense Fund”) to be held in each case, trust to cover and reimburse the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents fees and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to its obligations in connection with this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Grouptransactions contemplated herein. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion Any balance of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund not incurred for such purposes shall be returned to Parent, or if Parent has been dissolved or liquidated, to the Paying Agent for further distribution to the Company Securityholders members of Parent in accordance with their respective Pro Rata Shares. ownership of the issued and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders outstanding membership interests of Parent at the time of Closingsuch liquidation or dissolution.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement and efficiently represent the interests of the Company Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, by virtue of Effective upon the approval of the Merger and this Agreement by the Stockholders, and without any further act of any Stockholder, holder of Series B Warrant or Participant, the Representative shall be irrevocably constituted and appointed as the Representative for and on behalf of both the Stockholders, holders of Series B Warrant and the Participants contemplated by Schedule 2.7 to give and receive notices and communications, take any and all actions arising out of, or in connection with, this Agreement and the Acquisition (Ancillary Agreements, including for purposes of taking any action or omitting to take action on behalf of all Stockholders, holders of Series B Warrant and no act Participants or each of them hereunder or thereunder, to authorize delivery to the Buyer or any other Buyer Indemnified Party of any amounts from the funds held by the Escrow Agent in satisfaction of claims by the Buyer or such Company Securityholder)other Buyer Indemnified Party, to negotiate, enter into settlements and compromises of and comply with orders of courts with respect to such claims, and to take all actions necessary or appropriate in the consummation judgment of the Acquisition or participating in Representative for the Acquisition accomplishment of the foregoing, and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Acquisition, each Company Securityholder appoints carry out all other obligations set forth specifically for the Representative as its exclusive agent for in this Agreement. Such agency may be changed by the persons and entities set forth on Schedule 2.7 and representing two-thirds of the payments to be made thereunder of upon not less than ten (10) calendar days’ prior written notice to all such Company Securityholder persons and as such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closingentities, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement Buyer and the Escrow Agreement in Agent. Notices of communications to or from the absolute discretion Representative pertaining to the powers and duties of the RepresentativeRepresentative shall constitute notice to or from each of the Stockholders, (B) represent such Company Securityholder holders of Series B Warrant and such Company Securityholder’s successors Participants with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken by the Representative under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waiveditem.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by liable to any Stockholder, holder of Series B Warrant or Participant for any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death done or disability or any other event omitted hereunder as Representative while acting in good faith and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power exercise of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successorsreasonable judgment. The Representative will serve without compensation unless otherwise agreed in a separate agreement among the Stockholders, holders of Series B Warrant, Participants and the Representative. The Stockholders, holders of Series B Warrant and the Participants shall be entitled to: (i) rely upon jointly and severally and on a pro rata basis, based on the Payment Spreadsheetamounts set forth on Schedule 2.7, (ii) rely upon any signature believed by it to be genuine, indemnify and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with defend the Representative to provide direction to and hold the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor harmless against any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission Loss incurred by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and acceptance, performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion administration of the Representative’s responsibilitiesduties hereunder and under the Ancillary Agreements (including the Escrow Agreement), including the Representative will deliver reasonable fees and expenses of any remaining legal counsel, accountants, auditors and other advisors retained by the Representative.
(c) A decision, act, consent or instruction of the Representative Expense Fund shall constitute a decision of all of the Stockholders, holders of Series B Warrant and the Participants, and shall be final, binding and conclusive upon each and every Stockholder, holder of Series B Warrant and Participant, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of each and every Stockholder. The Escrow Agent and Buyer are hereby relieved from any liability to the Paying Agent any Person for further distribution to the Company Securityholders any acts done by them in accordance with their respective Pro Rata Shares. and such decision, act, consent or instruction of the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of ClosingRepresentative.
Appears in 1 contract
Representative. (a) In order to efficiently administer the obligations specified in this Agreement transactions contemplated hereby, including (i) the determination of the Net Working Capital and efficiently represent Adjusted Base Cash Purchase Price, (ii) the interests defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof and (iii) the enforcement of any rights of the Company Securityholders with respect to all matters arising Stockholders under Article VII hereof, the Company Stockholders, by the approval of the Merger and adoption of this Agreement or and/or their acceptance of Merger Consideration, hereby designate the Escrow Representative as their representative, attorney-in-fact and agent.
(b) The Company Stockholders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of Merger Consideration, hereby authorize the Representative (i) to prepare and deliver the Closing Balance Sheet and to make all decisions relating to the determination of the Net Working Capital and the Adjusted Base Cash Purchase Price, (ii) to take all action necessary in connection with the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to enforce any rights of the Company Stockholders under Article VII hereof, (iv) to give and receive all notices required to be given under the Agreement, and (v) to take any and all additional action as is contemplated to be taken by virtue or on behalf of the approval Company Stockholders by the terms of this Agreement.
(c) In the event that the Representative becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Company Stockholders (acting by the vote of the Company Stockholders who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares held by all Company Stockholders (voting on an as-converted basis)) shall select another representative to fill the vacancy of the Representative initially chosen by the Company Stockholders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement and the Acquisition documents delivered pursuant hereto.
(d) All decisions and actions by the Representative, including without limitation any agreement between the Representative and the Buyer relating to the determination of the Net Working Capital and the Adjusted Base Cash Purchase Price or the defense or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall be binding upon all of the Company Stockholders, and no act of such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including Stockholder shall have the right to receive object, dissent, protest or otherwise contest the consideration payable in connection with same.
(e) By his, her or its approval of the AcquisitionMerger and adoption of this Agreement, and/or his or its acceptance of Merger Consideration, each Company Securityholder appoints Stockholder, agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as its exclusive agent to the determination of the Net Working Capital and the Adjusted Base Cash Purchase Price, the settlement of any claims for such Company Securityholder indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof or any other actions required or permitted to be taken by the Representative hereunder, and as such Company Securityholder’s true and lawful attorney-in-fact effective no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the Closing, with full power and authority in such Company Securityholder’s name and on such Company Securityholder’s behalf for all purposes in connection with this Agreement and any agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion instructions or decisions of the Representative;
(ii) all actions, (B) represent such Company Securityholder decisions and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service instructions of process; and (D) in general to do all things and to perform all acts, including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf be conclusive and binding upon all of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement Stockholders and in no Company Stockholder shall have any cause of action against the Representative Engagement Agreementfor any action taken, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit decision made or the Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all actions taken instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement by the Escrow Representative;
(iii) the provisions of this Section 1.12 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.12 are inadequate; therefore, or the Representative Engagement Agreement Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.12; and
(v) the provisions of this Section 1.12 shall be binding upon such the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company SecurityholderStockholder, and all defenses which may be available any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) The Company Stockholders shall severally and not jointly indemnify the Representative and hold him, her or it harmless against any Company Securityholder to contestloss, negate liability or disaffirm expense incurred without gross negligence or bad faith on the action part of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority conferred under this Section 2.5 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, by such Company Securityholder’s death or disability or any other event and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(c) The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party.
(d) Certain Company Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement, and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Representative’s willful misconduct or gross negligence. By virtue of the approval of this Agreement and the Acquisition and no other act of any Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund, (ii) second, from any distributions of the Escrow Fund to the Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, otherwise applicable to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Group by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time by giving thirty (30) days’ notice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be the Representative for all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in connection therewith will be promptly reimbursed by the Representative (on behalf of the Company Securityholders).
(h) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the Advisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund while acting in good faith other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion administration of the Representative’s responsibilities, the Representative will deliver any remaining of the Representative Expense Fund to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Shares. and the agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closingduties hereunder.
Appears in 1 contract