Representative. (a) Each of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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. (c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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. (d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement. (f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. (h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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. (i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Vir Biotechnology, Inc.), Securities Purchase Agreement (Vir Biotechnology, Inc.)
Representative. (a) Each of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, The parties have agreed that it is desirable to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 designate a representative to act on behalf of the 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 the Stockholder Consent and the executed Letters 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 shall be entitled to engage Transmittal will expressly ratify and approve 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 Personsdesignation.
(b) Each of The Company hereby agrees that Parent and 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactions, each Indemnitee Escrow Agent 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 able to rely conclusively (without further evidence on the instructions and decisions of the Representative as to the settlement of any kind whatsoever) on claims against the Purchase Price Adjustment Escrow Amount pursuant to the Purchase Price Adjustment Escrow Agreement, to the settlement of any document executed claims against the Indemnification Escrow Amount pursuant to the Indemnification Escrow Agreement or purported as to any actions required or permitted to be executed on behalf of any Securityholders taken by the Representative and on any other action taken hereunder, under the Purchase Price Adjustment Escrow Agreement or purported to be taken on behalf of any Securityholders by under the Representative, as fully binding upon such SecurityholderIndemnification Escrow Agreement.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available Upon written instruction to any 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.
Agent, all out-of-pocket fees and expenses (dincluding legal, accounting and other advisors’ fees and expenses, if applicable) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 actions under this Agreement (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 determination of this Agreementthe 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 Engagement Agreement or any pursuant to Section 5.11(b)), will be paid out of the TransactionsRepresentative ▇▇▇▇▇▇ Account from time to time, or otherwise in connection with acting as the Representative, in each case as and when such Representative Expense is incurred. To the extent any Representative Expenses fees and expenses are not paid or reimbursed from incurred and at the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amountsole 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 shall establish with the Escrow Agent such terms and procedures for administering, investing and disbursing any amounts from the Representative Expenses from such amount before any distribution Escrow Amount as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the Securityholdersprovisions of this Agreement. If any balance of the Representative Escrow Amount remains undisbursed at such time as all disputes, or in claims and other matters relating to the event there are insufficient fundstransactions contemplated by this Agreement, directly 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 SecurityholdersRepresentative 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, severally 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 jointlybe liable for any Losses of, on a pro rata basis based on their respective Pro Rata Amount. any of the Company, Merger Sub, Parent or the Surviving Corporation in connection with any obligations of the Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses shall be proven to be the direct result of fraud or willful misconduct by the Representative in connection with the performance of its obligations hereunder.
(e) All of the indemnities, immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal of the Effective Time.
(f) The Representative or any member of the Advisory Group hereby represents and the Closing and/or any termination of this Agreement. The powers, immunities warrants to Parent and rights to indemnification granted to the Representative Group in this Agreement: Merger Sub that:
(i) are coupled with an interest The Representative has been duly formed and shall be irrevocable and survive is validly existing as a limited liability company under the death, incompetence, bankruptcy or liquidation laws of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery State of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 informationDelaware. The Representative shall not be liable has all requisite power and authority to any Securityholder for any apportionment or distribution of payments authorized by it in good faith, execute and if any such apportionment or distribution is subsequently determined to have been made in errordeliver this 95 Agreement, 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 Indemnification Escrow Agreement and 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 Purchase Price Adjustment Escrow Agreement.
(iii) At the Closing, The execution and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held delivery 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 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 not conflict with or violate any provision of any applicable law, rule or regulation of any Governmental Authority applicable to, or the 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 Seller Disclosure Letter, no notice to, filing with, or authorization, registration, consent or approval of any Governmental Authority is necessary for the Representative’s execution of this Agreement or the Purchase Price Adjustment Escrow Agreement, the Indemnification Escrow Agreement or the Representative Engagement Agreement. Purchaser will be deemed to have contributed on behalf its consummation of each Securityholder, his, her or its Pro Rata Amount of the Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund transactions contemplated hereby and 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 Representativethereby.
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement
Representative. (a) Each In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Securityholders Closing Cash Payment, (ii) the waiver of any condition to the obligations of the Seller to consummate the transactions contemplated hereby irrevocably nominateand (iii) the defense and/or settlement of any claims for which the Seller or the Guarantors may be required to indemnify the Buyer Indemnified Parties pursuant to this Agreement, constitute the Seller and appoint Fortis Advisorsthe Guarantors and, LLC for any actions taken prior to the Closing Date, the Companies, hereby designate the Representative as the exclusive agent and true and lawful its representative, attorney-in-fact and agent and shall execute such documentation and perform such acts as may be necessary to give effect to such designation pursuant to the Laws of any jurisdiction having application to the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of transactions contemplated by this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 The Seller and the Guarantors, and with respect to any actions taken prior to the Closing Date, the Companies, hereby authorize the Representative (i) to make all decisions relating to the determination of the Securityholders grants Closing Cash Payment and Closing Consideration pursuant to Section 1.5, (ii) to take all action necessary in connection with the waiver of any condition to the Representative full authority obligations of the Companies, the Seller and the Guarantors to executeconsummate the transactions contemplated hereby, deliveror the defense and/or settlement of any claims for which the Seller or the Guarantors may be required to indemnify the Buyer Indemnified Parties pursuant to this Agreement, acknowledge(iii) to give and receive all notices required to be given under the Agreement, certify and file (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Securityholders (in Seller or 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 Guarantor by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes terms of this Agreement.
(fc) Certain Securityholders have entered into an engagement agreement (In the “Representative Engagement Agreement”) with event that the Representative becomes unable to provide direction perform its responsibilities hereunder or resigns from such position, the Seller and the Guarantors 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 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 Buyers relating to the Representative in connection with its services under determination of the Closing Cash Consideration or the Closing Consideration or the defense or settlement of any claims for which the Seller or the Guarantors may be required to indemnify the Buyer Indemnified Parties pursuant to this Agreement, shall constitute a decision, act, consent, instruction or action of the Seller and the Guarantors and shall be binding and conclusive upon the Seller and the Guarantors and the Escrow Agreement 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 Seller. The Buyers and the Representative Engagement Agreement (Escrow Agent are hereby relieved from any liability to the Seller or any Guarantor for any acts done by them in accordance with such Securityholdersdecision, including their individual representativesact, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible by applicable lawconsent, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member instruction or action of the Advisory Group (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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.
(ge) The Representative Group shall be indemnifiedBy his, 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 her or amounts paid in settlement (“Representative Expense”) arising from, based upon or with respect the Representative’s its execution and performance of this Agreement, the Escrow AgreementSeller and each Guarantor agrees that:
(i) the Buyers shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Closing Consideration Statement and the Closing Cash Consideration or the Closing Consideration, the Representative Engagement settlement of any claims for indemnification by the Buyer Indemnified Parties pursuant to this Agreement 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 Indemnified Parties for any action taken by the Buyer Indemnified Parties in reliance upon the instructions or decisions of the Transactions, or otherwise in connection with acting as the Representative, in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders ;
(ii) none of the Escrow Amount, Seller or any Guarantor shall have any cause of action against the Representative shall have the right to recover the Representative Expenses from such amount before for any distribution to the Securityholdersaction taken, decision made or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to instruction given by the Representative under this Agreement shall survive the resignation Agreement, except for fraud or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination willful breach of this Agreement. The powersAgreement by the Representative;
(iii) the provisions of this Section 1.8 are independent and severable, immunities are irrevocable and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive enforceable notwithstanding any rights or remedies that the death, incompetence, bankruptcy Seller or liquidation any Guarantor may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at Law for any breach of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery provisions of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another partythis Section 1.8 are inadequate; therefore, the Representative 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 Buyers shall be entitled to rely temporary and permanent injunctive relief without the necessity of proving damages if the Buyers bring an action to enforce the provisions of this Section 1.8; and
(v) the provisions of this Section 1.8 shall be binding upon the Pro Rata Amount executors, heirs, legal representatives, personal representatives, successors and permitted assigns of the Seller and each Guarantor, and any references in this Agreement to the Spreadsheet when setting forth Seller or any apportionment Guarantor shall mean and include the successors to the Seller’s or distribution of payments required to be made such Guarantor’s rights hereunder, whether pursuant to this Agreement.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Agreementtestamentary disposition, the Escrow Agreement Laws of descent and distribution 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representativeotherwise.
Appears in 1 contract
Sources: Master Share Purchase Agreement (Endurance International Group Holdings, Inc.)
Representative. Vantage is hereby appointed by the Company (aand by execution of this Agreement hereby accepts such appointment) Each as the representative of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as Recipients (the exclusive agent and true and lawful attorney-in-fact of the Securityholders“Representative”), with full power of substitution, respect to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that by the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 actions and the Representative may, in its sole discretion, determine making of any decisions required or permitted to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or EBITDA Shares Escrow Agreement. Should the Representative Engagement Agreement are waived.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death resign or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent serve, a new Representative will be selected jointly by a vote of the SecurityholdersRecipients who, or be removedat Closing, then received a majority in interest of the Securityholders (determined based in accordance with their respective ownership Merger Shares, whose appointment shall be effective upon execution by such successor of Shares as of immediately prior a joinder agreement providing for such successor to become a party to the Closing) shallEscrow Agreement, within ten (10) days after such deaththe EBITDA Shares Escrow Agreement and this Agreement as the Representative, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any in which case such successor shall become for all purposes of this Agreement and the “Representative” Escrow Agreement and EBITDA Shares Escrow Agreement be the Representative (and the prior acts taken by the succeeded Representative shall remain valid for purposes of this Agreement.
(f) Certain 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, Agreement and the Escrow Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”EBITDA Shares Escrow Agreement). To If such Recipients are unable to appoint a Person to serve in the maximum extent permissible by applicable law, neither the capacity of Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member within 15 days of the Advisory Group (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 any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf directors of the applicable Securityholder or other 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment Company immediately prior to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 informationEffective Time. The Representative shall not be liable to any Securityholder Recipients for any apportionment liability, loss, damage, penalty, fine, cost or distribution of payments authorized expense incurred without gross negligence by it the Representative while acting in good faith and arising out of or in connection with the 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 after the Effective Time, a decision, act, consent or instruction of the Representative shall be final, binding and if 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 acts done by Parent or Surviving Corporation in accordance with any such apportionment decision, act, consent or distribution is subsequently determined to have been made in error, the sole recourse instruction 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 Parent, Parent and each of their respective Affiliates 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.
(i) At the Closingupon, and without any act of any Securityholdershall be fully protected in relying upon, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held by the Representative power and released on the instructions authority 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representativewithout independent investigation.
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) Each the use of the Securityholders hereby irrevocably nominate, constitute Escrow Shares as collateral for the indemnification obligations under Section 11.2 of the Plan of Reorganization and appoint Fortis Advisors, LLC in the manner set forth in this Agreement; (b) the appointment of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the exclusive agent representative of the UniCAD Common Stockholders (the "Representative") and true and lawful as the attorney-in-fact and agent for and on behalf of each UniCAD Common Stockholder (other than holders of Dissenting Shares), 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 or her under this Escrow Agreement, including, without limitation, the exercise of the Securityholderspower to (i) 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 full power orders of substitutioncourts and awards of arbitrators with respect to, to act in the namesuch claims, place and stead (iii) negotiate, execute on behalf of the Securityholders for purposes of executing any documents UniCAD Common Stockholders, deliver and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating perform amendments to or arising out modifications of this Escrow Agreement, the Escrow Agreement and the Representative Engagement Agreement including in connection with (iv) resolve any payment claim made pursuant to Section 1.6 or claim 11.2 of the Plan of Reorganization, and (v) take all actions necessary in the judgment of the Representative for indemnification under Section 5.5 or Section 7. Notwithstanding the accomplishment of the foregoing; and (c) all of the other terms, conditions and limitations of this Escrow Agreement. Accordingly, the Representative shall have no obligation has unlimited authority and power to act on behalf of the 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 same manner. The UniCAD Common Stockholders will be bound by all actions taken by 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 shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers this Escrow Agreement and performing its function hereunder CCT 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 Escrow Agent shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed action or purported to be executed on behalf of any Securityholders by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Securityholder to contest, negate 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each actions of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other party and (ii) rely upon the SpreadsheetUniCAD Common Stockholders. In all questions arising under this Agreement or the transactions contemplated herebyperforming such functions, the Representative may rely on the advice of counsel, accountants or other skilled persons, and the Representative will not be liable to any Securityholder the UniCAD Common Stockholders in the absence of gross negligence or any other Person for anything done, omitted or suffered in good faith willful misconduct. All actions and notices by the Representative based on hereunder shall be signed by the Representative. The Representative may resign from such advice of counselposition, accountants or other skilled persons, effective upon a new Representative being appointed to act as the case may be. No provision Representative by the written consent of this Agreement or any UniCAD Common Stockholders who beneficially own at least a majority of the transactions contemplated hereby shall require Escrow Shares. The UniCAD Common Stockholders must elect a new Representative, and such written consent must be given, within thirty days from the Representative to expend or risk its date of the Representative's notice of intended resignation. UniCAD Common Stockholders who beneficially own funds or otherwise incur any financial liability in the exercise or performance at least a majority of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or Shares may at any of the transactions contemplated hereby time and thereby. Furthermore, the Representative shall not be required from time to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient time appoint by written consent a new representative to protect the Representative against the costs, expenses and liabilities which may be incurred by act as 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 place of the Transactions, or otherwise in connection with acting as the then-current Representative, in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 entitled to receive any Securityholder compensation or reimbursement of expenses for any apportionment his 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 her actions taken with respect to this Escrow Agreement; provided, howevereither from CCT or the Escrow Account, 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 unless and until there are Escrow Shares to be made pursuant distributed to this Agreement.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held by the Representative and released UniCAD Common Stockholders on the instructions of Escrow Release Date (the Representative for the payment of Representative Expenses "Distributed Shares"). Any out-of- pocket costs and 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited connection with the Representative at the Closing that has not been used by the Representative actions taken pursuant to the terms of this Escrow Agreement shall will be released paid by the Representative for distribution by the Paying Agent UniCAD Common Stockholders to the Securityholders, in each case Representative in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of percentage interests in the Escrow Fund and 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 Representative.Shares set forth on Exhibit A.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cooper & Chyan Technology Inc)
Representative. (a) Each By the execution and delivery of the Securityholders this Agreement, including counterparts hereof, each Shareholder hereby irrevocably nominate, constitute constitutes and appoint Fortis Advisors, LLC appoints ▇▇▇▇ ▇. ▇▇▇▇▇▇ as the exclusive agent and true and lawful agent and attorney-in-fact of the Securityholders, such Shareholder with full power powers of substitution (the “Representative”, and, if substituted, the Representative shall promptly notify Buyer of such substitution, ) to act in the name, place and stead of such Shareholder with respect to this Agreement, as the Securityholders for purposes same may be from time to time amended, and with respect to the transfer of executing any documents such Shareholder’s Company Stock to Buyer pursuant hereto and taking any actions that the other transactions contemplated hereby, and to do or refrain from doing all such acts and things, and to execute all such documents, as the Representative may, in his sole discretion, determine to be necessary, desirable shall deem necessary or appropriate in all matters relating to or arising out of connection with this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 Ancillary Documents or any of the transactions contemplated hereby shall require or thereby. In 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 event of the transactions contemplated hereby and thereby. Furthermoredeath or other incapacity of the then current Representative, or resignation of the Representative shall not be required Representative, Shareholders which immediately prior to take the Closing held a majority of the Company Stock, shall, by 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 writing executed by the appropriate number of Shareholders and the new Representative (counterparts and facsimiles of signatures acceptable) approve and appoint a new Representative by delivering a written notice to that effect, whereupon the person designated in performing such actionsnotice shall be the new Representative with respect to all actions taken and/or documents signed from and after actual receipt by Buyer of such notice.
(gb) The Representative Group shall be indemnified, defended and held harmless by Without limiting 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 generality of the Transactions, or otherwise in connection with acting as the Representative, in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another partyforegoing, the Representative is not responsible hereby authorized (i) to receive any payment owing to the Shareholders pursuant to Section 2.3, (ii) to execute the Escrow Agreement on behalf of the Shareholders, and (iii) to take all actions on behalf of the Shareholders in connection with any actions taken or to be taken under Section 2.3 and Article IX of this Agreement (including accepting service of process upon the Shareholders and accepting or compromising any claim for indemnification and any claim relating to the content Proposed Purchase Price Calculation). The Representative and the Shareholders hereby agree that any amounts disbursed out of such materials, nor is the Escrow Account or the Settlement Agreement Indemnification Escrow Account to the Representative responsible for confirming pursuant to the accuracy terms of any information contained this Agreement and/or the Escrow Agreement shall be distributed by the Representative to the Shareholders in such materials or reconciling accordance with Schedule 1. All decisions and actions of the content Representative permitted hereunder shall be final, binding and conclusive on the Shareholders and may be relied upon by Buyer and its Affiliates as the decisions and actions of any such materials with any other documents, spreadsheets or other informationall of the Shareholders. The Representative shall not be liable to any Securityholder of the Shareholders for any apportionment act done or distribution of payments authorized omitted by it him 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 faith 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 any mistake of each Securityholder, his, her fact or its Pro Rata Amount of the Representative’s Expense Fund Amount for retention Law unless caused by the Representative. 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’s Expense Fund other than as a result of its his own gross negligence or willful misconduct, and the Significant Shareholders shall jointly and severally and the Non-Significant Shareholders shall severally but not jointly indemnify the Representative from any Losses arising out of his serving as Representative hereunder. In taking any action or refraining from taking any action whatsoever the Representative shall be protected in relying upon any notice, paper or other document reasonably believed by him to be genuine, or upon any evidence reasonably deemed by him to be sufficient. The Securityholders will not 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 to the Representative’s Expense Fund from consult with counsel in connection with his duties and shall be fully protected in any consideration otherwise distributable to the Securityholders. As soon as reasonably determined act taken, suffered or permitted by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited him in good faith in accordance with the Representative at the Closing that has not been used by the Representative pursuant to the terms advice of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representativecounsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (McJunkin Red Man Holding Corp)
Representative. (a) Each Effective upon and by virtue of the Securityholders Required Stockholder Approval, and without any further act of any of the Stockholders, the Representative shall be hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC appointed by the Stockholders as the exclusive agent representative of the Stockholders and true and lawful as the attorney-in-fact and agent for and on behalf of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders each Stockholder for purposes of executing this Agreement and the Escrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement and taking any shall take such actions that to be taken by the Representative may, under this Agreement and the Escrow Agreement and any other agreements and documents executed or delivered in his sole discretion, determine to be necessary, desirable connection with this Agreement and such other actions on behalf of such Stockholders as it may deem necessary or appropriate in all matters relating connection with or to consummate the transactions contemplated hereby or arising out of thereby, including (i) executing and delivering this Agreement, the Escrow Agreement and the Representative Engagement Agreement including in connection with any payment pursuant other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as 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 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 which the Representative. The Representative shall be entitled to 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 shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Stockholder as compared to be necessaryother Stockholders shall require the prior written consent of such Stockholder), desirable (ii) taking all actions and making all filings on behalf of such Stockholders with any Governmental Authority or appropriateother 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 or the Escrow Agreement on behalf of such Stockholders, (iv) satisfying from the Escrow Account costs, expenses and/or liabilities incurred by the Representative in such forms and containing such provisions its capacity as the Representative mayand otherwise in accordance with this Agreement and/or the Escrow Agreement, and (v) taking all other actions that are either necessary or appropriate in its sole discretion, determine to be appropriate, in performing its duties as the judgment of the Representative for the accomplishment of the foregoing or contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in terms of this Agreement or in the Escrow Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Stockholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Contract Person to represent such Stockholder with regard to this Agreement and the Escrow Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the Transactions, sole and exclusive representative of each Indemnitee of the Stockholders for any purpose provided for by this Agreement. Representative shall be entitled bound by the same confidentiality restrictions binding Company pursuant to deal exclusively with Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Stockholders 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 Stockholders. Each Stockholder shall promptly provide written notice to the Representative of any change of address of such Stockholder.
(b) A decision, act, consent or instruction of the Representative hereunder shall constitute a decision, act, consent or instruction of all matters relating to Sections 1.3, 5.5 and 7 Stockholders and shall be entitled to final, binding and conclusive upon each such Stockholder, and Parent and the Surviving Company may rely conclusively (without further evidence upon any such decision, act, consent or instruction of any kind whatsoever) on any document executed or purported to be executed on behalf of any Securityholders by the Representative as being the decision, act, consent or instruction of each and on every such Stockholder. Parent, the Surviving Company and the Escrow Agent shall be relieved from any other action taken liability to any Person for any acts done by them in accordance with such decision, act, consent or purported to be taken on behalf instruction of any Securityholders by the Representative, as fully binding upon such Securityholder.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain Securityholders Stockholders have entered into an engagement a letter agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement, Agreement and the Escrow Agreement and the Representative Engagement Agreement (such SecurityholdersStockholders, including included their individual representatives, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible by applicable law, neither Neither the Representative nor and its members, managers, directors, officers, contractors, agents and employees employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, suffered by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act any Stockholder in reliance upon any signature notice, direction, instruction, consent, statement or other document believed by it such Representative to be genuine and may reasonably assume that to have been signed by such person has proper authorization Stockholder (and shall have no responsibility to sign on behalf determine the authenticity thereof), nor for any other action or inaction, except the gross negligence, bad faith or willful misconduct of the applicable Securityholder or other party and (ii) rely upon the SpreadsheetRepresentative Group. In all questions arising under this Agreement or the transactions contemplated herebyEscrow Agreement, the Representative may rely on the advice of outside counsel, accountants or other skilled persons, and the Representative will shall not be liable to any Securityholder or any other Person Stockholder 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 beadvice. No provision of this Agreement or any of the transactions contemplated hereby Escrow 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 or the Escrow Agreement on behalf of any Stockholders.
(d) Each Preferred Stockholder shall severally, but not jointly (based on such Preferred Stockholder’s Proportionate Share), 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 the acceptance or administration of the Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other advisors reasonably retained by the Representative. All fees and expenses incurred by the Representative in performing its duties shall be borne by the Preferred Stockholders in accordance with their respective Proportionate Shares of such fees and expenses and shall be paid first out of the Representative Reserve, second from the Escrow Amount or any Earnout Payment or Milestone Payment otherwise distributable to the Stockholders, and, third, directly from the Preferred Stockholders, in accordance with their respective Proportionate Shares. As soon as practicable following the termination of all of the Representative’s obligations related to this Agreement and the transactions hereunder, as determined in the sole discretion of the Representative, the Representative shall distribute the remaining portion of the Representative Reserve (if any) (i) to Parent for prompt payment of the MIP Payment with respect to such distribution and (ii) to Parent or Parent’s paying agent for prompt distribution to the Preferred Stockholders based on each Preferred Stockholder’s Proportionate Share of such amount by wire transfer of immediately available funds; provided that in the event that the Preferred Stockholder Allocated Amounts, including amounts distributable in connection with such payment, exceeds the Aggregate Liquidation Preference Amount, then the amount of such payment in excess of the Aggregate Liquidation Preference Amount shall be distributed to the Common Stockholders based on each Common Stockholder’s Proportionate Share of such excess (any such distribution, a “Reserve Distribution”).
(e) The Representative Reserve shall be held in a segregated client account, separate from the Representative’s corporate funds and the Representative will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Representative Reserve shall be used for the purposes of paying directly, or reimbursing the Representative for, any losses, liabilities or expenses incurred pursuant to this Agreement, the Escrow Agreement or any Representative engagement agreement. The Stockholders shall not receive interest or other earnings on amounts in the Representative Reserve and the Stockholders 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 Reserve. 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 transactions contemplated hereby Representative Reserve 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 Reserve, and therebyhas no tax reporting obligations hereunder.
(f) At any time Stockholders representing at least seventy percent (70%) in interest of the Stockholders may, by written consent, appoint another Person as Representative. FurthermoreNotice together with a copy of the written consent appointing such Person and bearing the signatures of Stockholders of at least seventy percent (70%) in interest of the Stockholders must be delivered to Parent and, if applicable, the Representative Escrow Agent not less than ten (10) days prior to such appointment. Such appointment shall not be required to take any action unless effective upon the Representative has been provided with fundslater of the date indicated in the consent or the date ten (10) days after such consent is received by Parent and, security or indemnities whichif applicable, the Escrow Agent. For the purposes of this Section 8.1, “seventy percent (70%) in its determination, are sufficient to protect interest of the Representative against Stockholders” shall mean Stockholders representing in the costs, expenses and liabilities which may be incurred by aggregate at least seventy percent (70%) of the Representative percentage interests in performing such actionsthe Aggregate Merger Consideration.
(g) The Representative Group shall be indemnified, defended and held harmless by In 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, event that the Representative Engagement Agreement becomes unable or any of the Transactions, unwilling to continue in his or otherwise in connection with acting its capacity as the Representative, or if the Representative resigns as a Representative, Stockholders representing at least seventy percent (70%) in each case interest of the Stockholders may, by written consent, appoint a new representative as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders . Notice and a copy of the Escrow Amountwritten consent appointing such new representative and bearing the signatures of the Stockholders of at least seventy percent (70%) in interest of the Stockholders must be delivered to Parent and, if applicable, the Representative Escrow Agent. Such appointment shall have be effective upon the right to recover later of the Representative Expenses from such amount before any distribution to the Securityholders, or date indicated in the event there are insufficient fundsconsent or the date ten (10) days after such consent is received by Parent and, directly from if applicable, the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the Escrow Agent.
(h) The immunities and powers granted rights to the Representative under this Agreement 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 or the Escrow Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreementshall be entitled to: (i) are rely upon the Distribution 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 Stockholder or other party. The grant of authority provided for herein (A) is coupled with an interest and shall be irrevocable and survive the death, incompetenceincompetency, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and Stockholder, (iiB) shall survive the delivery of an assignment by any Securityholder Stockholder of the whole or any fraction of his, her or its interest in any post-Closing consideration and (C) shall survive the Escrow Amount.
(h) To consummation of the extent Merger. The provisions of this Section 8.1 shall be binding upon the Representative receives documentsexecutors, spreadsheets heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to any Stockholder or other forms of information from any party the Stockholders shall mean and include the Representative is required successors to deliver any such documentStockholder’s rights hereunder, spreadsheet or other form of information whether pursuant to another partytestamentary disposition, the Representative is not responsible for the content laws of such materials, nor is the Representative responsible for confirming the accuracy of any information contained in such materials descent and distribution 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 Agreementotherwise.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 1 contract
Sources: Merger Agreement (AtriCure, Inc.)
Representative. (a) Each of the Securityholders hereby The Holders irrevocably nominate, constitute and appoint Fortis Advisors, Stone Point Capital LLC to act as the exclusive designated representative, agent and true and lawful attorney-in-fact of the Securityholders, such Holders with full power authority to make all decisions and determinations and to take all actions required or permitted under or relating to this Agreement and the Escrow Agreement on behalf of substitutionsuch Holders (the committee, to act in such capacity, the name"Representative"), place and stead including (i) approving any of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine required to be necessarydelivered by such Holders on or after the Closing Date, desirable (ii) approving or appropriate contesting the Closing Statement, and/or the Initial Merger Consideration adjustments, as set forth in all matters relating to or arising out Article III of this Agreement, the Escrow Agreement and the Representative Engagement Agreement including any other matter provided for in connection with Article III of this Agreement, (iii) administering 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 matter on behalf of the SecurityholdersHolders, except as expressly provided hereinagreeing to the settlement of any indemnification matter and otherwise handling and negotiating indemnification matters, in the Escrow Agreement and in the Representative Engagement (iv) agreeing to any waiver, consent or amendment under or to this Agreement, and for purposes provided that no such waiver, consent or amendment shall adversely affect the allocation of clarityany consideration hereunder to any Holder who does not expressly consent thereto in writing, 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 shall be entitled to 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 Representativev) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(b) Each of the Securityholders grants distributing to the Representative full authority Holders any portion of any consideration hereunder payable to executethe Holders after the Closing Date, deliver(vi) sending, acknowledge, certify receiving and file reviewing notices under this Agreement on behalf of the Securityholders Holders and (vii) appointing a successor Representative in the name of any or all event of the Securityholders resignation or otherwise) any 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 documents that the Representative may, in its sole discretion, determine to be necessary, desirable matters which arise under or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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.
(c) this Agreement. All actions taken by the Representative under this Agreement Representative in connection with, or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreementrelating to, the Escrow Agreement or the Representative Engagement Agreement are waived.
(d) The power subject matter of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other party and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated hereby, Escrow Agreement that are within the authority conferred upon the Representative may rely on the advice of counselpursuant to this Section 11.12 shall be deemed authorized, accountants or other skilled personsapproved, ratified and the Representative will not be liable to any Securityholder or any other Person for anything done, omitted or suffered in good faith confirmed by the Representative based on Holders, having the same force and effect as if performed pursuant to the direct authorization of such advice Holders. Subject to the terms 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 shall be entitled, absent gross negligence or any of the Transactionsbad faith, or otherwise to indemnification in connection with acting as the Representativeperformance by the Representative of its rights and obligations pursuant to this Section 11.12 and/or under the Escrow Agreement, in each case as such Representative Expense is incurred. To which indemnification shall be satisfied solely by having recourse against the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense FundEscrow Funds; provided that, upon any payment subject to the Securityholders Section 7 of the Escrow AmountAgreement, any such indemnification of the Representative shall have be subject and strictly subordinated to any rights of the right to recover Parent and the Representative Expenses from such amount before any distribution other Indemnified Parties against the Escrow Fund pursuant to the SecurityholdersEscrow Agreement, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted with no Escrow Funds to be paid to the Representative under this Agreement 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 survive be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the resignation or removal Representative on behalf of the Representative or any member of the Advisory Group Holders and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 in any Securityholder manner whatsoever for any apportionment action taken or distribution of payments authorized by it not taken in good faith, and if any such apportionment reliance upon the actions taken 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 taken or willful misconduct communications or writings given or executed by the Representative. The Representative Parent shall be entitled to rely upon the Pro Rata Amount in the Spreadsheet when setting forth disregard any apportionment notices or distribution of payments required to be communications given or made pursuant to this Agreement.
(i) At the Closing, and without by any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Holder unless given 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 made through the Representative.
Appears in 1 contract
Sources: Merger Agreement (Fidelity National Financial Inc /De/)
Representative. (a) Each In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Securityholders Net Working Capital and Adjusted Base Cash Purchase Price, (ii) 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 and (iii) the enforcement of any rights of the Company Stockholders under Article VII hereof, the Company Stockholders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of Merger Consideration, hereby irrevocably nominatedesignate the Representative as their representative, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact and agent.
(b) The Company Stockholders, by the approval of the SecurityholdersMerger and adoption of this Agreement and/or their acceptance of Merger Consideration, with full power of substitution, hereby authorize the Representative (i) to act in prepare and deliver the name, place Closing Balance Sheet and stead to make all decisions relating to the determination of the Securityholders 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 purposes 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 executing 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 documents and taking any actions all additional action as is contemplated to be taken by or on behalf of the Company Stockholders by the terms of this Agreement.
(c) In the event that the Representative maybecomes unable to perform his, in his sole discretionher or its responsibilities hereunder or resigns from such position, determine 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 necessarythe Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Representative, desirable or appropriate in all matters 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 arising out 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 Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By his, her or its approval of the Merger and adoption of this Agreement, and/or his or its acceptance of Merger Consideration, each Company Stockholder, agrees that:
(i) the Escrow Agreement Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Net Working Capital and the Adjusted Base Cash Purchase Price, the settlement of any claims for 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 Engagement 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) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all of the Company Stockholders and no Company Stockholder shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement including by the 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 payment pursuant to breach of the provisions of this Section 1.6 or claim for indemnification under Section 5.5 or Section 7. Notwithstanding the foregoing1.12 are inadequate; therefore, the Representative shall have no obligation to act on behalf of Buyer and the 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 Surviving Corporation shall be entitled to engage such counseltemporary 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 the executors, experts heirs, legal representatives, personal representatives, successors and other agents permitted assigns of each Company Stockholder, and consultants as 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 shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions Representative and advice arising out 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 acceptance or purported to be executed on behalf of any Securityholders by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 administration of the Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and shall not be available to satisfy any indemnification or other obligations to Purchaser duties 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 Representative.
Appears in 1 contract
Representative. (a) Each of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, The parties have agreed that it is desirable to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 designate a representative to act on behalf of the 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 the Stockholder Consent and the executed Letters 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 shall be entitled to engage Transmittal will expressly ratify and approve 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 Personsdesignation.
(b) Each of The Company hereby agrees that Parent and 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactions, each Indemnitee Escrow Agent 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 able to rely conclusively (without further evidence on the instructions and decisions of the Representative as to the settlement of any kind whatsoever) on claims against the Purchase Price Adjustment Escrow Amount pursuant to the Purchase Price Adjustment Escrow Agreement, to the settlement of any document executed claims against the Indemnification Escrow Amount pursuant to the Indemnification Escrow Agreement or purported as to any actions required or permitted to be executed on behalf of any Securityholders taken by the Representative and on any other action taken hereunder, under the Purchase Price Adjustment Escrow Agreement or purported to be taken on behalf of any Securityholders by under the Representative, as fully binding upon such SecurityholderIndemnification Escrow Agreement.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available Upon written instruction to any 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.
Agent, all out-of-pocket fees and expenses (dincluding legal, accounting and other advisors’ fees and expenses, if applicable) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 actions under this Agreement (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 determination of this Agreementthe 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 Engagement Agreement or any pursuant to Section 5.11(b)), will be paid out of the TransactionsRepresentative Escrow Account from time to time, or otherwise in connection with acting as the Representative, in each case as and when such Representative Expense is incurred. To the extent any Representative Expenses fees and expenses are not paid or reimbursed from incurred and at the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amountsole 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 shall establish with the Escrow Agent such terms and procedures for administering, investing and disbursing any amounts from the Representative Expenses from such amount before any distribution Escrow Amount as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the Securityholdersprovisions of this Agreement. If any balance of the Representative Escrow Amount remains undisbursed at such time as all disputes, or in claims and other matters relating to the event there are insufficient fundstransactions contemplated by this Agreement, directly 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 SecurityholdersRepresentative 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, severally 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 Escrow Amount.
(d) Each of the Company, Merger 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, Merger Sub and Parent acknowledges and agrees that the Representative shall have no liability to, and shall not jointlybe liable for any Losses of, on a pro rata basis based on their respective Pro Rata Amount. any of the Company, Merger Sub, Parent or the Surviving Corporation in connection with any obligations of the Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses shall be proven to be the direct result of fraud or willful misconduct by the Representative in connection with the performance of its obligations hereunder.
(e) All of the indemnities, immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal of the Effective Time.
(f) The Representative or any member of the Advisory Group hereby represents and the Closing and/or any termination of this Agreement. The powers, immunities warrants to Parent and rights to indemnification granted to the Representative Group in this Agreement: Merger Sub that:
(i) are coupled with an interest The Representative has been duly formed and shall be irrevocable and survive is validly existing as a limited liability company under the death, incompetence, bankruptcy or liquidation laws of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery State of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 informationDelaware. The Representative shall not be liable has all requisite power and authority to any Securityholder for any apportionment or distribution of payments authorized by it in good faith, execute and if any such apportionment or distribution is subsequently determined to have been made in errordeliver this Agreement, 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 Indemnification Escrow Agreement and 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 Purchase Price Adjustment Escrow Agreement.
(iii) At the Closing, The execution and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held delivery 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 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 not conflict with or violate any provision of any applicable law, rule or regulation of any Governmental Authority applicable to, or the 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 Seller Disclosure Letter, no notice to, filing with, or authorization, registration, consent or approval of any Governmental Authority is necessary for the Representative’s execution of this Agreement or the Purchase Price Adjustment Escrow Agreement, the Indemnification Escrow Agreement or the Representative Engagement Agreement. Purchaser will be deemed to have contributed on behalf its consummation of each Securityholder, his, her or its Pro Rata Amount of the Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund transactions contemplated hereby and 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 Representativethereby.
Appears in 1 contract
Representative. (a) Each In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Securityholders Earn-out Consideration, the Preliminary Net Asset Value and the Adjusted Merger Consideration, (ii) the waiver of any condition to the obligations of the Company Participating Equity Holders to consummate the transactions contemplated hereby irrevocably nominateand (iii) the defense and/or settlement of any claims for which the Company Participating Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to this Agreement, constitute the Company Participating Equity Holders, by the approval of the Merger and appoint Fortis Advisorsadoption of this Agreement and/or their acceptance of any Merger Consideration pursuant to this Agreement, LLC hereby designate the Representative as the exclusive agent and true and lawful their representative, attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 Personsagent.
(b) Each The Company Participating Equity Holders, by the approval of the Securityholders grants Merger and adoption of this Agreement and/or their acceptance of any Merger Consideration pursuant to this Agreement, hereby authorize the Representative (i) to make all decisions relating to the determination of the Earn-out Consideration pursuant to Section 1.6, (ii) to make all decisions relating to the determination of the Preliminary Net Asset Value and the Adjusted Merger Consideration pursuant to Section 1.10, (iii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Participating Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VII hereof, (iv) to give and receive all notices required to be given under the Agreement, (v) to use the Representative full authority Expense Amount for purposes of paying fees and expenses of the Representative incurred in connection with the discharge of its duties under this Agreement and (vi) to execute, deliver, acknowledge, certify take any and file all additional action as is contemplated to be taken by or on behalf of the Securityholders (in Company Participating Equity Holders by the name terms of this Agreement. If any or all amount of the Securityholders or otherwiseRepresentative Expense Amount remains after the Representative has discharged its duties under this Agreement (the “Representative Expense Amount Surplus”), the Paying Agent shall pay to each Company Participating Equity Holder an amount equal to the product of (x) any the number of Company Participating Equity Equivalents owned by the Company Participating Equity Holder immediately prior to the Effective Time and all documents (y) the Per Share Representative Expense Amount Surplus.
(c) In the event that the Representative maybecomes unable to perform its responsibilities hereunder or resigns from such position, in its sole discretionthe 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 to Common Share basis)) shall select another representative to fill the vacancy of the Representative initially chosen by the Company Stockholders, determine and such substituted representative shall be deemed to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a)for all purposes of this Agreement and the documents delivered pursuant hereto. Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactionsset forth herein, 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 Company Stockholders (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Securityholders acting by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action a vote of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the Securityholders.
(e) Securityholders with a majority in interest (determined based in accordance with their respective ownership of Shares as of Company Stockholders who immediately prior to Closingthe Effective Time held at least a majority of the outstanding Company Shares held by all Company Stockholders (voting on an as-converted to Common Share basis)) shall have the right to remove the Representative at any time. If (with or without cause) and shall select another representative to fill the vacancy of such Representative, and such substituted representative shall be deemed to be the Representative shall resignfor all purposes of this Agreement and the documents delivered pursuant hereto.
(d) A decision, dieact, become disabled consent, instruction or otherwise be unable to fulfill its responsibilities as agent action of the SecurityholdersRepresentative, or be removed, then a majority in interest including without limitation any agreement between the Representative and the Buyer relating to the determination of the Securityholders (determined based Preliminary Net Asset Value, the Adjusted Merger Consideration, the Earn-out Consideration, the defense or settlement of any claims for which the Company Participating Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VII hereof or any adjustment to Schedule I in accordance with their respective ownership the provisions of Shares as of immediately prior to the Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafterSection 7.3(h), shall notify Purchaser constitute a decision, act, consent, instruction or action of all Company Participating Equity Holders and shall be binding and conclusive upon each of such Company Participating 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 Company Participating Equity Holder. The Buyer, I-B, A-C, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Company Participating Equity Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the identity Representative.
(e) By his, her or its approval of such successor. Any such successor shall become the “Representative” for purposes Merger and adoption of this Agreement.
(f) Certain Securityholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative , and/or their acceptance of any Merger Consideration pursuant to provide direction to the Representative in connection with its services under this Agreement, each Company Participating Equity Holder, agrees that:
(i) the Escrow Agreement Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Earn-out Consideration, the Preliminary Net Asset Value and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectivelyAdjusted Merger Consideration, the “Representative Group”) shall incur any liability settlement of any kind claims for indemnification by the Buyer and/or the Surviving Corporation pursuant to any Securityholder Article VII or any other Person actions required or permitted to be taken by the Representative hereunder (including any adjustment to Schedule I in accordance with respect to the provisions of Section 7.3(h)), and no party shall have any cause of action against the Buyer for any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act Buyer in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf the instructions or decisions of the applicable Securityholder or other party and Representative;
(ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated hereby, no Company Participating Equity Holder shall have any cause of action against the Representative may rely on the advice of counselfor any action taken or not taken, accountants decision made or other skilled persons, and the Representative will not be liable to any Securityholder made or any other Person for anything done, omitted instruction given or suffered in good faith not given 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 agreements related hereto, except for fraud or willful breach of this Agreement by the Representative, and thereby. Furthermore, the Company Participating Equity Holders shall jointly and severally indemnify the Representative shall not be required to take in respect of and hold it harmless for, any action unless the Representative has been provided with fundstaken, security decision made or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred instruction given 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 under this Agreement, the Escrow Agreement, the Representative Engagement Agreement or any of the Transactionsagreements related hereto, except for fraud or otherwise in connection with acting as willful breach of this Agreement by the Representative, in each case as such Representative Expense is incurred. To ;
(iii) the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement. The powersSection 1.12 are independent and severable, immunities are irrevocable and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive enforceable notwithstanding any rights or remedies that any Company Participating Equity Holder may have in connection with the death, incompetence, bankruptcy or liquidation transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the respective Securityholder provisions of this Section 1.12 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 1.12; and
(v) the provisions of this Section 1.12 shall be binding on upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Company Participating Equity Holder, and any successor thereto references in this Agreement to a Company Participating Equity Holder or the Company Participating Equity Holders shall mean and (ii) shall survive include the delivery successors to the Company Participating Equity Holder’s rights hereunder, whether pursuant to testamentary disposition, the laws of an assignment by any Securityholder of the whole descent and distribution or any fraction of his, her or its interest in the Escrow Amount.otherwise
(hf) To the extent the Representative receives documents, spreadsheets or other forms For purposes of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another partyclarification, the Representative is a representative and agent of the Company Participating Equity Holders only and does not responsible for the content of such materialsrepresent, nor and is the Representative responsible for confirming the accuracy of any information contained in such materials or reconciling the content of any such materials with not an agent for, any other documentsParty hereto, 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 Agreementincluding Spinco.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 1 contract
Representative. (a) Each As an integral component of the Securityholders terms and conditions of this Agreement and the Merger, the Representative is hereby irrevocably nominateappointed, constitute authorized and appoint Fortis Advisors, LLC empowered as the exclusive agent and true and lawful attorney-in-fact representative of the SecurityholdersEquityholders, with full power of substitution, to act Blocker Seller and their respective successors and permitted assigns for the purposes specified in the name, place this Agreement and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and all actions taken by the Representative Engagement 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 purposes for which it serves as the Representative as specified in this Agreement including and the Escrow Agreement for and on behalf of the Equityholders and Blocker Seller, including, without limitation, approving or contesting 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 payment distributions to be made in respect thereof pursuant to Section 1.6 3.8, consenting to, compromising or claim for indemnification settling all claims and matters in connection with such determination or distributions, conducting negotiations with Parent and other applicable counterparties and their agents regarding claims and matters in connection with such determination or distributions, dealing with Parent, the Surviving Entity and its Subsidiaries, and the Escrow Agent, under Section 5.5 this Agreement and the Escrow Agreement, as applicable, in connection with such determination or Section 7distributions, and engaging counsel, accountants or other representatives on behalf of the Equityholders and Blocker Seller in connection with the foregoing matters. Notwithstanding Without limiting the generality of the foregoing, the Representative shall will have no obligation to act full power and authority on behalf of the Securityholders, except as expressly provided herein, in Equityholders and Blocker Seller to interpret all of the terms and provisions of this Agreement and 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 shall be entitled to 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactions, each Indemnitee shall be entitled determination of the Total Equity Value and the Blocker Adjustment (or any elements thereof) pursuant 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 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, Section 3.7 and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain Securityholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative actions in connection with its services under this Agreement, the Escrow Agreement any distributions to be made in respect thereof pursuant to Section 3.8 and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind consent to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf waiver of the applicable Securityholder or other party and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated herebyEscrow Agreement, 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 amendment 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 in each case on behalf of the Transactions, or otherwise all such Equityholders and Blocker Seller and their respective successors and permitted assigns in connection with acting as the Representative, in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders determination of the Escrow AmountTotal 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, notwithstanding the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholdersforegoing, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement shall survive the resignation may only be amended or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group modified in this Agreement: (i) are coupled accordance with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 informationSection 15.2. 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 hereby accepts 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 Agreementappointment.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 1 contract
Representative. (a) Each The Stockholders Representative shall be the agent and attorney-in-fact for each of the Securityholders Stockholders and the Optionholders under this Agreement and the other agreements contemplated hereby irrevocably nominatein accordance with the terms of this Section 10.11. In the event of the resignation, constitute death or incapacity of the Stockholders Representative, a successor Stockholder Representative reasonably satisfactory to Parent shall thereafter be appointed by an instrument in writing signed by Parent and appoint Fortis Advisorssuch successor Stockholders Representative.
(b) The Stockholders Representative is hereby authorized and empowered to act for, LLC 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 and administration of the transactions contemplated in this Agreement, the Indemnity Escrow Agreement and the other agreements contemplated hereby and thereby including executing and delivering all agreements, amendments, certificates, receipts, consents, elections, instructions and other documents contemplated by, or deemed by the Stockholders Representative to 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 exclusive agent and true and lawful duly appointed attorney-in-fact of each Stockholder and Optionholder. Notices given to the Securityholders, Stockholders Representative in accordance with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out provisions of this Agreement, Agreement shall constitute notice to the Escrow Agreement Stockholders and the Representative Engagement Agreement including in connection with any payment pursuant to Section 1.6 or claim Optionholders for indemnification all purposes under Section 5.5 or Section 7. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement this 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 shall be entitled to 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action The appointment of the Stockholders Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(d) The power of attorney granted in Section 8.1(a): (i) is an agency coupled with an interest and is irrevocable; (ii) may be delegated irrevocable and any action taken by the Representative; Stockholders Representative pursuant to the authority granted in this Section 10.11 shall be effective and (iii) shall survive the dissolutionabsolutely binding on each Stockholder and Optionholder notwithstanding any contrary action of or direction from such Stockholder or Optionholder, death except for actions or incapacity of each omissions of the 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 Stockholders Representative at any time. If the Representative shall resign, die, become disabled or otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own constituting willful misconduct or gross negligence. 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 Stockholders Representative. Parent, Merger Sub and any other party to any 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.
(id) 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 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 part of the Stockholders 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 Parent or Merger Sub.
(e) The Stockholders Representative may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice. The Stockholders Representative shall be entitled 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 and may reasonably assume that such the Person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Stockholders Representative may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has proper authorization full power and authority to sign instruct the Stockholders Representative on behalf of that party unless written notice to the applicable Securityholder or other party contrary is delivered to the Stockholders Representative.
(f) The Stockholders Representative shall receive reimbursement from, and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated herebybe indemnified from, the Representative may rely on the advice of counselIndemnity Escrow Account, accountants or other skilled personsfor any and all expenses, charges and the Representative will not be liable to any Securityholder or any other Person for anything doneliabilities, omitted or suffered in good faith by the Representative based on such advice of counselincluding reasonable attorneys’ fees, 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 Stockholders 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 performance or amounts paid in settlement (“Representative Expense”) arising from, based upon or with respect the Representative’s execution and performance discharge 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 RepresentativeSection 10.11.
Appears in 1 contract
Sources: Merger Agreement (Aleris Corp)
Representative. (a) Each Effective upon and by virtue of the Securityholders Shareholder Approval, and without any further act of any of the Shareholders, Representative shall be hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC appointed as the exclusive agent representative of the Shareholders and true and lawful as the attorney-in-fact and agent for and on behalf of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders each Shareholder for purposes of executing any documents this Agreement and taking any the Escrow Agreements. Representative will take such actions that under this Agreement and the Escrow Agreements and otherwise on behalf of such Shareholders as Representative may, in his sole discretion, determine to be necessary, desirable may deem necessary or appropriate in all matters relating its discretion in connection with or to consummate the transactions contemplated hereby or arising out of thereby, including (i) executing and delivering this Agreement, the Escrow Agreement 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 Representative Engagement Agreement including in connection 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 payment pursuant Governmental Body or other Person necessary to Section 1.6 effect the consummation of the 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 claim for indemnification under Section 5.5 or Section 7. Notwithstanding the foregoing, the Representative shall have no obligation to act Escrow Agreements on behalf of the SecurityholdersShareholders, except as expressly provided herein, in the Escrow Agreement and in (iv) using the Representative Engagement AgreementExpense Amount to satisfy costs, and for purposes expenses and/or liabilities 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 shall be entitled to 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 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 absence judgment of bad faith 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 part amounts payable to the Shareholders. Each Shareholder shall promptly provide written notice to Representative of the Representative) shall be entitled to conclusively rely on the opinions and advice any change of address of such PersonsShareholder.
(b) Each A decision, act, consent or instruction of the Securityholders grants to the Representative full authority to executehereunder shall constitute a decision, deliveract, acknowledge, certify and file on behalf consent or instruction 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 Shareholders and shall be entitled 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 rely conclusively (without further evidence any Person for any acts done by them in accordance with such decision, act, consent or instruction of any kind whatsoever) on any document executed or purported to be executed on behalf of any Securityholders by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall will incur any no liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, suffered by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act any party in reliance upon any signature notice, direction, instruction, consent, statement or other document believed by it such Representative to be genuine and may reasonably assume that such person has to have been signed by the proper authorization Person (and shall have no responsibility to sign on behalf determine the authenticity thereof), nor for any other action or inaction, except the deliberate fraud of the applicable Securityholder or other party and (ii) rely upon the SpreadsheetRepresentative. In all questions arising under this Agreement or the transactions contemplated herebyEscrow Agreements, the Representative may rely on the advice of outside counsel, accountants or other skilled persons, and the Representative will not be liable to any Securityholder or any other Person Shareholder for anything done, omitted or suffered in good faith by the Representative based on such advice advice.
(d) If and to the extent that the Representative Expense Amount is not sufficient to pay, or reimburse Representative for, the expenses incurred in connection with the performance of counselduties hereunder by the Representatives, accountants 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 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 skilled persons, as the case may beadvisors reasonably retained by Representative. No provision After release of this Agreement or any all Post-Closing Indemnity Escrow Funds and completion of the transactions contemplated hereby shall require Representatives duties hereunder, if and to the extent any portion of the Representative Expense Amount is unspent, Representative will take reasonable steps to expend or risk its own funds or otherwise incur distribute any financial liability such remaining portion as 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 exercise or performance Shareholders may, by written consent, appoint a new representative as Representative. Notice together with a copy of any the written consent appointing such new representative and bearing the signatures of its powersShareholders of at least seventy percent (70%) in interest of the Shareholders must be delivered to Parent and, rights, duties or privileges under this Agreementif applicable, the Escrow Agreement or any Agent not less than ten (10) days prior to such appointment. Such appointment will be effective upon the later of the transactions contemplated hereby and thereby. Furthermoredate 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 10.01, "seventy percent (70%) in interest of the Shareholders" shall mean Shareholders representing in the 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 shall not becomes unable or unwilling to continue in his or its capacity as Representative, or if Representative resigns as a Representative, Shareholders representing at least seventy percent (70%) in interest of the Shareholders 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 Shareholders of at least seventy percent (70%) in interest of the Shareholders must be required delivered to take any action unless Parent and, if applicable, the Representative has been provided with fundsEscrow Agent. 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, security or indemnities whichif applicable, 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 actionsEscrow Agent.
(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 grant 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: authority provided for herein (i) are is coupled with an interest and shall be irrevocable and survive the death, incompetenceincompetency, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto Shareholder, and (ii) shall survive the delivery of an assignment by any Securityholder consummation of the whole or any fraction of his, her or its interest in the Escrow AmountMerger.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 1 contract
Representative. (a) Each of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, The parties have agreed that it is desirable to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 designate a representative to act on behalf of the 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 the Stockholder Consent and the executed Letters 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 shall be entitled to engage Transmittal will expressly ratify and approve 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 Personsdesignation.
(b) Each of The Company hereby agrees that Parent and 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactions, each Indemnitee Escrow Agent 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 able to rely conclusively (without further evidence on the instructions and decisions of the Representative as to the settlement of any kind whatsoever) on claims against the Purchase Price Adjustment Escrow Amount pursuant to the Purchase Price Adjustment Escrow Agreement, to the settlement of any document executed claims against the Indemnification Escrow Amount pursuant to the Indemnification Escrow Agreement or purported as to any actions required or permitted to be executed on behalf of any Securityholders taken by the Representative and on any other action taken hereunder or purported to be taken on behalf of any Securityholders by under the Representative, as fully binding upon such SecurityholderPurchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder out-of-pocket fees and such Securityholder’s successors as expenses (including legal, accounting and other advisors’ fees and expenses, if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(dapplicable) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 actions under this Agreement, the Purchase Price Adjustment Escrow Agreement, Agreement or the Indemnification Escrow Agreement will be paid out of the Representative Engagement Agreement or any of the TransactionsEscrow Account from time to time, or otherwise in connection with acting as the Representative, in each case as and when such Representative Expense is incurred. To the extent any Representative Expenses fees and expenses are not paid or reimbursed from incurred and at the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amountsole discretion. In addition, the Representative shall have the right to recover 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 such distribution, shall deliver to the Escrow Agent a certificate setting forth such fees and expenses actually incurred. The Representative shall establish such terms and procedures for administering, investing and disbursing any amounts from the Representative Expenses from such amount before any distribution Escrow Amount as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the Securityholdersprovisions 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 and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then the Representative shall distribute to each Fully-Diluted Stockholder, by wire transfer of immediately available funds to an account (or by check to an address) designated by each Fully-Diluted Stockholder, such Fully-Diluted Stockholder’s Ownership Percentage of such remainder balance of the Representative Escrow Account.
(d) Each of the Company, Merger 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 event there are insufficient fundsconsummation of the transactions contemplated hereby. Accordingly, directly from each of the SecurityholdersCompany, severally Merger Sub and Parent acknowledges and agrees that the Representative shall have no liability to, and shall not jointlybe liable for any Losses of, on a pro rata basis based on their respective Pro Rata Amount. any of the Company, Merger Sub, Parent or the Surviving Corporation in connection with any obligations of the Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses shall be proven to be the direct result of fraud by the Representative in connection with the performance of its obligations hereunder.
(e) All of the indemnities, immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal of the Effective Time.
(f) The Representative or any member of the Advisory Group hereby represents and the Closing and/or any termination of this Agreement. The powers, immunities warrants to Parent and rights to indemnification granted to the Representative Group in this Agreement: Merger Sub that:
(i) are coupled with an interest The Representative has been duly formed and shall be irrevocable and survive is validly existing as a limited liability company under the death, incompetence, bankruptcy or liquidation laws of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery State of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 informationDelaware. The Representative shall not be liable has all requisite power and authority to any Securityholder for any apportionment or distribution of payments authorized by it in good faith, execute and if any such apportionment or distribution is subsequently determined to have been made in errordeliver this Agreement, 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 Indemnification Escrow Agreement and 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 Purchase Price Adjustment Escrow Agreement.
(iii) At the Closing, The execution and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held delivery 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 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 not conflict with or violate any provision of any applicable law, rule or regulation of any Governmental Authority applicable to, or the 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 Disclosure Letter, no notice to, filing with, or authorization, registration, consent or approval of any Governmental Authority is necessary for the Representative’s execution of this Agreement or the Purchase Price Adjustment Escrow Agreement, the Indemnification Escrow Agreement or the Representative Engagement Agreement. Purchaser will be deemed to have contributed on behalf its consummation of each Securityholder, his, her or its Pro Rata Amount of the Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund transactions contemplated hereby and 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 Representativethereby.
Appears in 1 contract
Representative. (a) Each The Representative shall serve as representative of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as Shareholders (with respect to their interest in the exclusive agent and true and lawful attorney-in-fact of the Securityholders, Escrow Amounts) with full power and authority to take all actions under this Agreement and the Escrow Agreement relating to claims for indemnification asserted by any Parent Indemnified Party hereunder. Such power and authority shall include, without limitation, the 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 substitutionclaims 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 (3) to do each and every act in the name, place and stead of the Securityholders for purposes of executing exercise any documents and taking any actions that all rights which the Representative may, is permitted or required to do or exercise under this Agreement and the Escrow Agreement. The Shareholders will be bound by all actions taken by the Representative in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of connection with claims for indemnification asserted by Parent Indemnified Parties under this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 Parent shall be entitled to engage such counselrely on any notice or communication to or by, experts and other agents and consultants as it shall deem necessary in connection or decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative. Without limiting the generality of the foregoing, each decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative will constitute a decision of all of the Shareholders with exercising its powers and performing its function hereunder and (respect to their interest in the absence Escrow Amounts, and will be final, binding and conclusive upon each Shareholder, and Parent may rely upon any such decision, action, failure to act within a designated period of bad faith on time, agreement, consent, settlement, resolution or instruction of the part Representative as being that of each and every Shareholder. Parent and the Escrow Agent are hereby relieved from any liability to any Shareholder for any acts done by it in accordance with such decision, act, consent or instruction of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(b) Each Any expenses or liabilities incurred by the Representative in connection with the performance of its duties in such capacity under this Agreement or the Securityholders grants Escrow Agreement shall be reimbursed to the Representative full authority 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 executeany other rights or remedies, 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 discretionupon prior or contemporaneous written notice, determine offset any amounts determined by it to be necessary, desirable or appropriate, in such forms and containing such provisions as owed to the Representative may, in its sole discretion, determine against any portion of the Escrow Amounts to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything paid to the 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 Shareholders 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 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 Securityholdera pro rata basis.
(c) All actions taken by In the event of a vacancy in the position of Representative under this Agreement Representative (or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholderresignation, and all defenses which may be available to any Securityholder to contest, negate refusal or disaffirm the action incapability of the Representative taken to serve), holders of a majority in good faith under this Agreement, 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 or 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 Engagement Agreement are waivedhereunder 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 power Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of attorney granted in Section 8.1(a): 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 (i) is coupled with an interest and is irrevocable; (ii) may be delegated by except to the Shareholders 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 information confidentially). The Representative shall enter into a separate confidentiality agreement (in form and (iiicontent reasonably acceptable to Parent) shall survive the dissolution, death or incapacity of each of the Securityholdersprior to being provided access to such information if requested by Parent.
(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 The Representative shall resign, die, become disabled or otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis distribute based on their respective Pro Rata Amount. All of the immunities and powers granted Portions to the Representative under this Agreement shall survive Shareholders, other than the resignation or removal Dissenting Shareholders, any portion of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled the Escrow Fund and/or 280G Escrow Fund that becomes available for distribution in accordance with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation terms of the respective Securityholder and shall be binding on any successor thereto Escrow Agreement and (ii) shall survive the delivery of an assignment by any Securityholder Shareholders’ Representative Amount that is available for distribution upon the termination of the whole or any fraction of his, her or its interest in Escrow Agreement (the Escrow Amount“Per Share Post-Closing Consideration”).
(hf) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held by the Representative and released on the instructions of the Representative for the payment of Representative Expenses incurred by the Representative in performing By its duties pursuant signature to this Agreement, subject to the Escrow Agreement or 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 Engagement Agreement. Purchaser will be deemed and to have contributed on behalf discharge the duties and responsibilities of each Securityholder, his, her or its Pro Rata Amount of the Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if anyAgreement. For the avoidance of doubt, the Representative’s Expense Fund Amount agreement to serve in such capacity shall not establish a fiduciary relationship between Representative and any other party (including the Shareholders or the Parent Indemnified Parties). Representative shall not be deemed part personally liable to any party for any action taken in such capacity except to the extent arising as a result of Representative’s willful misconduct or gross negligence; 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 Escrow Fund 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 no 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 agreement or instructions, other than outlined in this Agreement. The Representative may rely, and shall not be available liable for acting or refraining from acting, upon any written notice, instruction or request furnished to satisfy it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. The Representative shall be under no duty to inquire into or investigate the validity, accuracy or content of any indemnification such document. The Representative may perform its duties hereunder directly or other obligations through agents or attorneys and may consult with counsel and accountants to Purchaser hereunderbe 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 Purchaser the provisions contained in this Agreement shall require the Representative to use or advance its own funds in the performance of any of its Affiliates shall have duties or the exercise of any liability of its rights or obligation with respect to the use of the Representative’s Expense Fund Amount by the Representativepowers hereunder.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Chart Industries Inc)
Representative. (a) Each of Effective upon the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out execution of this Agreement, and without any further act of any Seller, Optionholder or Phantom Award Recipient, the Escrow Representative is hereby irrevocably appointed as the representative, agent, proxy, and attorney in fact (coupled with an interest) for all Sellers, Optionholders and Phantom Award Recipients for all purposes under this Agreement including the full power and authority on the Sellers', Optionholders' and Phantom Award Recipients' behalf, as applicable: (i) to consummate the transactions contemplated under this Agreement and the Representative Engagement Agreement including other agreements, instruments, and documents contemplated hereby or executed in connection with any payment herewith, (ii) 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 the Closing Cash Proceeds contemplated by Section 2.04 or the indemnification provided pursuant to Section 1.6 11.03 and Annex I), (iii) to receive and disburse to, or claim caused to be received or disbursed to, any Seller, Optionholder or Phantom Award Recipient any funds received on behalf of such Seller, Optionholder or Phantom Award Recipient under this Agreement (including, for indemnification under Section 5.5 the avoidance of doubt, any portion of the Enterprise Value) or Section 7. Notwithstanding otherwise, (iv) to withhold any amounts received on behalf of any Seller, Optionholder or Phantom Award Recipient pursuant to this Agreement or to satisfy any and all obligations or liabilities of any Seller, Optionholder or Phantom Award Recipient or the foregoingRepresentative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the Representative shall have no obligation to act satisfaction of payment obligations (on behalf of the SecurityholdersSellers, 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 Optionholders or the Company Disclosure Schedule. Fortis Advisors LLC hereby accepts its appointment as the Representative. The Representative shall be entitled to 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 RepresentativePhantom Award Recipients) 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactionsadjustment of the Closing Cash Proceeds contemplated by Section 2.04 or the indemnification provided pursuant to Section 11.03 and Annex I), each Indemnitee shall be entitled (v) to deal exclusively with execute and deliver any amendment or waiver to this Agreement and the Representative on all matters relating to Sections 1.3other agreements, 5.5 instruments, and 7 and shall be entitled to rely conclusively documents contemplated hereby or executed in connection herewith (without further evidence the prior approval of any kind whatsoeverSeller), (vi) on any document executed to receive and disburse to, or purported cause to be executed received or disbursed to, any individual any funds received on behalf of such individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Closing and (vii) to take all other actions to be taken by or on behalf of any Securityholders Seller, Optionholder or Phantom Award Recipient 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 Seller, Optionholder and Phantom Award Recipient. All decisions and actions by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder Seller, Optionholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such SecurityholderPhantom Award Recipient, and all defenses which may be available to any Securityholder to contestno Seller, negate Optionholder or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) Phantom Award Recipient shall survive the dissolution, death or incapacity of each of the 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 object, dissent, protest or otherwise contest the Representative at any timesame. If the The Representative shall resignhave no duties or obligations hereunder, dieincluding any fiduciary duties, become disabled or otherwise except those set forth herein, and such duties and obligations shall be unable to fulfill its responsibilities as agent of determined solely by the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes express provisions of this Agreement.
(fb) Certain Securityholders have entered into an engagement agreement (Effective upon the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under execution of this Agreement, the Escrow Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible by applicable law, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor without any member of the Advisory Group (collectively, the “Representative Group”) shall incur any liability further act of any kind to any Securityholder Seller, Optionholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other party and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated herebyPhantom Award Recipient, 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 Non-Recourse Parties shall be indemnified, defended and held harmless and reimbursed by each Seller, Optionholder and Phantom Award Recipient severally (based on the Securityholders from relative portion of proceeds received by each Seller, Optionholder and Phantom Award Recipient hereunder), and not jointly, 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 insurersattorneys' fees), judgments, fines or and 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held incurred by the Representative and released on its Non-Recourse Parties in connection with any claim, action, suit or Proceeding to which the instructions Representative or such other Person is made a party by reason of the Representative for the payment of Representative Expenses incurred by the Representative in performing its duties pursuant to this Agreement, the Escrow Agreement fact that it is 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than was acting as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative (including, for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Sellers, Optionholders and Phantom Award Recipients) in connection with the adjustment of the Closing Cash Proceeds contemplated by Section 2.04 or the indemnification provided pursuant to Section 11.03 and Annex I). 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 Sellers, Optionholders and Phantom Award Recipients, as applicable (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Seller or otherwise).
(c) Neither the Representative nor any of its Non-Recourse Parties shall incur any Liability to any Seller, Optionholder or Phantom Award Recipient 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 Seller, Optionholder or Phantom Award Recipient, 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 Sellers, Optionholders or Phantom Award Recipients) in connection with any obligation or Liability of a Seller, Optionholder or Phantom Award Recipient in connection with the transactions contemplated hereby (including, for the avoidance of doubt, the adjustment of the Closing Cash Proceeds contemplated by Section 2.04 or the indemnification provided pursuant to Section 11.03 and Annex I), any such payments and the reasonable expenses of the Representative incurred in administering or defending the underlying dispute or claim may be reimbursed, when and as incurred, from the Representative Holdback Amount (and, if not so reimbursed from the Representative Holdback Amount, the Representative shall be indemnified, held harmless and reimbursed by each Seller, Optionholder and Phantom Award Recipient severally (based on the relative portion of proceeds received by each Seller, Optionholder and Phantom Award Recipient hereunder), 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 Sellers, Optionholders or Phantom Award Recipients to one or more Sellers, Optionholders or Phantom Award Recipients at any time after the Closing Date, which such distribution(s) of funds may be different (i.e., with respect to amount, timing, conditionality or otherwise) for each Seller, Optionholder or Phantom Award Recipient. Upon full reimbursement of all 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 Sellers, Optionholders or Phantom Award Recipients to the Sellers, Optionholders or Phantom Award Recipients, as applicable.
(e) Notwithstanding anything to the contrary set forth herein, the Representative and its Affiliates shall not be liable to any Seller, Optionholder or Phantom Award Recipient for any action taken or not taken by the 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.
(f) All references to the "Representative’s Expense Fund Amount " herein mean such Person in its capacity as representative of the Sellers, Optionholders and Phantom Award Recipients and not, for the avoidance of doubt, in any other capacity, as a Seller or otherwise.
(g) Except as may have been expressly and specifically agreed to in writing by a Seller, Optionholder or Phantom Award Recipient, on the one hand, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ("K&E LLP"), on the other hand, and except for the Representative, Sun Capital Partners, Inc. and their respective Affiliates (i) K&E LLP has not and is not representing, and shall not be deemed part of to have represented any Seller, Optionholder or Phantom Award Recipient in connection with the Escrow Fund transactions contemplated hereby, and (ii) K&E LLP has not and is not providing any advice or counsel (including legal advice or counsel), and shall not be available deemed to satisfy have provided counsel or advice, to any indemnification Seller, Optionholder or Phantom Award Recipient in connection with the transactions contemplated hereby. Each Seller, Optionholder and Phantom Award Recipient agrees that K&E LLP may represent the Representative, Sun Capital Partners, Inc. and their respective Affiliates in any matter related to the transaction completed hereby including matters which maybe adverse to such Persons and, in furtherance thereof, each Seller, Optionholder and Phantom Award Recipient consents to, and waives, without limitation, restriction or condition of any kind, any actual or potential conflict or other obligations to Purchaser hereunder. None of Purchaser actual or any of its Affiliates shall have any liability or obligation potential objection with respect to the use K&E LLP's representation of the Representative’s Expense Fund Amount , Sun Capital Partners, Inc. and their respective Affiliates in any matter related to the transaction completed hereby.
(h) Purchaser and its Subsidiaries (including the Company and its Subsidiaries following the Closing) have the right to rely, without independent investigation upon all actions taken or omitted to be taken by the RepresentativeRepresentative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the Sellers, Optionholders and Phantom Award Recipients. Purchaser and its Subsidiaries (including the Company and its Subsidiaries) shall be fully protected in dealing with the Representative under this Agreement and the Ancillary Documents and may rely upon the authority of the Representative to act on behalf of the Sellers, Optionholders and Phantom Award Recipients. Any payment by Purchaser and its Subsidiaries (including the Company and its Subsidiaries) to the Representative to the extent authorized under and in compliance with this Agreement shall be considered a payment by Purchaser and its Subsidiaries (including the Company and its Subsidiaries) to the Sellers, Optionholders or Phantom Award Recipients, as applicable, and Purchaser and its Subsidiaries (including the Company and its Subsidiaries) shall have no Liability to any Seller, Optionholder or Phantom Award Recipient for any payments so made.
Appears in 1 contract
Representative. (a) Each of the Securityholders The Representative is hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC appointed as the exclusive agent representative, agent, proxy, and true and lawful attorney-in-fact for all the 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 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 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 behalf of the Company 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 full power of substitutionan interest, to act in are therefore irrevocable without the name, place and stead consent of the Securityholders for purposes Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of executing any documents Company Securityholder. All decisions and taking any actions that by the Representative mayshall 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 his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 distribute funds to act on behalf of the SecurityholdersCompany Securityholders in accordance with their respective Pro Rata Share. Parent may conclusively rely, except as expressly provided hereinwithout independent verification or investigation, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations 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 ancillary agreement, schedule, exhibit such decision or the Company Disclosure Schedule. Fortis Advisors LLC hereby accepts its appointment as action of the Representative. The Representative shall be entitled 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 engage such counselthe Company Securityholders hereunder, experts and other agents and consultants except as it shall deem necessary expressly set forth 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 Personsthis Agreement.
(b) Each By the approval 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the TransactionsAgreement, each Indemnitee shall be entitled Company Securityholder hereby severally, for itself only and not jointly and up to deal exclusively with the Representative on all matters relating its Pro Rata Share, agrees to Sections 1.3, 5.5 indemnify 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 hold harmless the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible by applicable law, neither the Representative nor its memberspartners, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other party and (ii) rely upon the Spreadsheet. In representatives against 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 insurersattorneys’ fees), judgments, fines or and 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 incurred by such Persons in connection with acting as the Representativeany action, in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid suit or reimbursed from the Representative’s Expense Fund, upon any payment proceeding to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal of which the Representative or any member such other Person is made a party by reason of the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy fact that it is or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than acting as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the SecurityholdersAgreement, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 than as a result of the Representative’s Expense Fund Amount bad faith or willful misconduct.
(c) Neither the Representative nor any of its members, 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 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 the allocation and distribution of the Closing Date Merger Consideration in accordance with Article III (Merger Consideration; Conversion of Securities; Exchange of Certificates)) to 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, and, subject to the terms of this Agreement, the balance of the Representative Holdback Amount, if any, shall be delivered by the Representative or a paying agent designated by the Representative to the Company Securityholders as if such amounts were being distributed pursuant to Section 3.7(a)(i) (Positive Adjustment Amount). The Company Securityholders will not receive any interest or earnings on the Representative 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 Holdback Amount other than as a result of its bad faith or willful misconduct. The Representative Holdback Amount shall be held in an FDIC-insured account or accounts at a nationally recognized financial institution.
(f) In the event that the Representative becomes unable or unwilling to continue in its capacity as Representative, or if the Representative resigns as the Representative, a majority-in-interest of the Company Securityholders 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 a majority-in-interest of the Company Securityholders must be delivered to Parent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent.
Appears in 1 contract
Representative. (a) Each of the Securityholders hereby The Stockholder irrevocably nominateappoints Fidelity National Financial, constitute and appoint Fortis Advisors, LLC Inc. to act as the exclusive designated representative, agent and true and lawful attorney-in-fact of the Securityholders, Stockholder with full power of substitution, authority to act in the name, place make all decisions and stead of the Securityholders for purposes of executing any documents determinations and taking any to take all actions that the Representative may, in his sole discretion, determine to be necessary, desirable required or appropriate in all matters permitted under or relating to or arising out of this Agreement, the Merger Agreement and the Escrow Agreement and the Representative Engagement Agreement 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 SecurityholdersStockholder (but not with respect to this Agreement, except as expressly provided hereinother than Sections 3.5(b) and 4.1(b) hereof) (such Person, in such capacity, the Escrow Agreement and “Representative”), including (i) approving any of the documents required to be delivered by the Stockholder on or after the Closing Date, (ii) approving or contesting the Closing Statement or the Initial Common Stock Cash Consideration adjustments, as set forth in Article II of the Representative Engagement Merger Agreement, and any other matter provided for purposes of clarity, there are no obligations in Article II of the Representative in Merger Agreement, (iii) administering any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Fortis Advisors LLC hereby accepts its appointment as the Representative. The Representative shall be entitled to 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 matter on behalf of the Securityholders Stockholder pursuant to the Escrow Agreement, agreeing to the settlement of any matter thereunder and otherwise handling and negotiating any matter relating thereto, (iv) agreeing to any waiver, consent or amendment under the Merger Agreement, (v) distributing to the Stockholder any portion of any consideration payable to the Stockholder under the Merger Agreement after the Closing Date, (vi) sending, receiving and reviewing notices under the Merger Agreement on behalf of the Stockholder, (vii) handling any of the matters referred to in Sections 3.5(b) and 4.1(b) hereof on behalf of a Stockholder and (viii) appointing a successor Representative in the name of any or all event of the Securityholders resignation or otherwise) any death of the then current Representative. The Stockholder acknowledges that this Section 6.7 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and all documents that the Representative may, in its sole discretion, determine to be necessary, desirable handling of matters which arise under or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the TransactionsMerger Agreement and the Escrow Agreement (but not with respect to this Agreement, each Indemnitee shall be entitled to deal exclusively with the Representative on all matters relating to other than Sections 1.3, 5.5 3.5(b) and 7 and shall be entitled to rely conclusively (without further evidence of any kind whatsoever4.1(b) on any document executed or purported to be executed on behalf of any Securityholders by the 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.
(c) hereof). All actions taken by the Representative under this in connection with, or relating to, the subject matter of the Merger Agreement Representative or the Representative Engagement Escrow Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available (but not with respect to any Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, other than Sections 3.5(b) and 4.1(b) hereof) that are within the Escrow Agreement or authority conferred upon the Representative Engagement Agreement are waived.
(d) The power of attorney granted in pursuant to this Section 8.1(a): (i) is coupled with an interest 6.7 shall be deemed authorized, approved, ratified and is irrevocable; (ii) may be delegated confirmed by the Representative; Stockholder, having the same force and (iii) shall survive effect as if performed pursuant to the dissolution, death or incapacity of each direct authorization of the 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 timeStockholder. If the Representative shall resign, die, become disabled or otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or be removed, then a majority in interest of the Securityholders (determined based in accordance with their respective ownership of Shares as of immediately prior Subject to the Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser terms of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 shall be entitled, absent gross negligence or any of the Transactionsbad faith, or otherwise to indemnification in connection with acting as the performance by the Representative of its rights and obligations pursuant to this Section 6.7 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 such indemnification of 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; provided, further, that to the extent that the Escrow Funds are insufficient to so indemnify the Representative, in each case as the Stockholder shall indemnify the Representative for its Pro Rata Portion of such Representative Expense is incurredshortfall. To the extent The Stockholder agrees that Parent shall be entitled to rely upon, without independent investigation, any Representative Expenses are not paid act, notice, instruction or reimbursed communication from the Representative’s Expense Fund, upon any payment to the Securityholders Representative on behalf of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally Stockholder and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 in any Securityholder manner whatsoever for any apportionment action taken or distribution of payments authorized by it not taken in good faith, and if any such apportionment reliance upon the actions taken 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 taken or willful misconduct communications or writings given or executed by the Representative. The Representative Stockholder further agrees that Parent shall be entitled to rely upon disregard any notices or communications given or made by the Pro Rata Amount Stockholder in the Spreadsheet when setting forth any apportionment or distribution of payments required to be made pursuant to this Agreement.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount connection with the Representative, to be 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 Merger Agreement (but not with respect 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence Sections 3.5(b) and 4.1(b) hereof) unless given or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 made through the Representative.
Appears in 1 contract
Sources: Stockholder Agreement (Fidelity National Financial, Inc.)
Representative. (a) Each of the Securityholders Shareholder and Principal Equity Holder hereby irrevocably nominate, constitute constitutes and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement including in connection with any payment pursuant to Section 1.6 or claim for indemnification under Section 5.5 or Section 7appoints T▇▇▇▇▇▇ ▇. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the 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, for the purpose of performing and consummating the transactions contemplated by this Agreement. The Representative shall be entitled to 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 appointment 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 T▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and all authority hereby conferred shall be irrevocable and the Representative is irrevocable; (ii) may be delegated by the Representative; hereby authorized and (iii) shall survive the dissolution, death or incapacity of each directed to perform and consummate on behalf of the 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 otherwise be unable to fulfill its responsibilities as agent Shareholders and Principal Equity Holders all of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of transactions contemplated by this Agreement.
(fb) Certain Securityholders have entered into an engagement agreement (Not by way of limiting the “Representative Engagement Agreement”) with authority of the Representative, each and all of Shareholders and Principal Equity Holders, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the Representative to provide direction to to:
(i) waive any provision of this Agreement which the Representative in connection with its services under deems necessary or desirable;
(ii) execute and deliver on the Shareholders’ and the Principal Equity Holders’ behalf all documents and instruments which may be executed and delivered pursuant to this Agreement, including without limitation the Escrow Shares and any transfer documentation with respect thereto;
(iii) (c) calculate, negotiate and agree to any adjustments to the Total Consideration;
(iv) make and receive notices and other communications pursuant to this Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible by applicable law, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor service of process in any member of the Advisory Group (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any legal action or inaction taken other proceeding arising out of or failed related to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 hereunder;
(v) contest, negotiate, defend, compromise or settle any Action arising out of or related 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, hereunder through counsel selected by the Representative shall not be required and solely at the cost, risk and expense of the Principal Equity Holders;
(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 such indemnification obligations or Actions;
(viii) resolve any Actions arising from the Shareholders’ or Principal Equity Holders’ indemnification obligations hereunder;
(ix) take any action unless actions in connection with the Representative has been provided resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise;
(x) receive and distribute all or any portion of the Total Consideration or any other payment owing to the Shareholders or Principal Equity Holders hereunder in accordance with fundsthe terms herein or therein;
(xi) appoint or provide for successor agents;
(xii) select, security retain, hire and consult with legal counsel, independent public accountants and other experts, solely at the cost and expense of the Principal Equity Holders;
(xiii) pay expenses incurred or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by or on behalf of the Shareholders or Principal Equity Holders in connection with this Agreement; and
(xiv) take or forego any or all actions permitted or required of any Shareholder or Principal Equity Holders or necessary in the judgment of the Representative in performing such actionsfor the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement.
(gc) The Representative Group shall be indemnified, defended Each Shareholder 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, Principal Equity Holder agrees that the Representative shall have no liability to the right to recover Shareholders or Principal Equity Holders for any act or omission by the Representative Expenses from such amount before as permitted under this Section, excepting only actions taken in bad faith, and each Shareholder and Principal Equity Holder hereby irrevocably waives and releases any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to claims it may have against the Representative under this Agreement shall survive the resignation or removal of the Representative or for his acts and omissions hereunder other than any member of the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group actions taken in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amountbad faith.
(hd) To EACH SHAREHOLDER AND PRINCIPAL EQUITY HOLDER UNDERSTANDS AND ACKNOWLEDGES THAT HE OR SHE IS: (A) AUTHORIZING THE REPRESENTATIVE TO ACT FOR THE SHAREHOLDERS AND PRINCIPAL EQUITY HOLDERS, COLLECTIVELY AND INDIVIDUALLY, WITH BROAD POWERS; AND (B) AGREEING THAT THE REPRESENTATIVE WILL NOT BE LIABLE TO THE SHAREHOLDERS AND PRINCIPAL EQUITY HOLDERS, COLLECTIVELY OR INDIVIDUALLY, UNLESS THE REPRESENTATIVE ACTS IN BAD FAITH. EACH SHAREHOLDER AND PRINCIPAL EQUITY HOLDER 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.
(e) In the extent event of the failure or refusal of T▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to act as the Representative receives documents, spreadsheets (or other forms upon the death or incapacity (mental or physical) for more than 14 days of information from T▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another partysuccessor), the Representative is not responsible remaining Principal Equity Holders (including the estate or the heirs of T▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇) shall promptly appoint one of the remaining Principal Equity Holders as their agent for purposes of this Section 11.16.
(f) The Parties hereby acknowledges certain funds have been deposited into the Reserve Account for the content of such materials, nor is the Representative responsible for confirming the accuracy satisfaction of any information contained and all Damages incurred by any Parent Indemnified Party in such materials connection with, with respect to, or reconciling otherwise related to, the content of any such materials with any other documents, spreadsheets or other information401(k) Employer Contribution Error. The Representative shall not be liable to any Securityholder for any apportionment distribute 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, liquidate any of the Representative’s Expense Reserve Fund Amount originally deposited with until the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders401(k) Employee Contribution Error is fully remedied, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and shall not be available to satisfy pay any indemnification or other obligations to Purchaser hereunder. None of Purchaser or any of its Affiliates shall have any liability or obligation and all Damages with respect to the use 401(k) Employer Contribution Error from the Reserve Fund promptly upon the written request of the Representative’s Expense Fund Amount by the Representativeany Parent Indemnified Party therefor, which request shall contain a reasonably detailed accounting of such Damages.
Appears in 1 contract
Representative. (a) Each Effective upon and by virtue of the Securityholders hereby irrevocably nominategranting to Rights Holders the right to receive the merger consideration as set forth in Sections 1.06, constitute 1.07 and appoint Fortis Advisors1.08 and the Closing Cash Bonus Participants the right to receive the Closing Cash Bonus Payments as set forth in Section 1.10(a)(vii), LLC BCOA Nominees Limited (the “Rights Holder Representative”) is appointed as the exclusive agent and true and lawful attorney-in-fact with respect to the rights and obligations of the SecurityholdersRights Holders and Closing Cash Bonus Participants. The rights and obligations of the Rights Holder Representative are as set forth in Exhibit F hereto, and all Rights Holders and Closing Cash Bonus Participants shall be bound by the terms set forth in Exhibit F. Other than the Rights Holder Representative, no Rights Holder or Closing Cash Bonus Participant shall bring any claim or action related to this Agreement, including with full power respect to the determination of substitutionany Earnout Payment. The terms set forth in Exhibit F shall represent the agreement solely between the Rights Holders, Closing Cash Bonus Participants and the Rights Holder Representative and no other party.
(b) Buyer and the Surviving Corporation shall have the right to rely upon the actions of the Rights Holder Representative. Fees and expenses of the Rights Holder Representative shall be payable at the rate and in the manner agreed to by and among the Rights Holder Representative, the Rights Holders and the Closing Cash Bonus Participants. Neither Buyer nor the Surviving Corporation shall be responsible for any of the fees or expenses of the Rights Holder Representative under any circumstances. Buyer and the Surviving Corporation shall have no liability to the Rights Holders or Closing Cash Bonus Participants for any losses or claims arising from the actions or conduct of the Rights Holder Representative, or for any breach of the terms set forth in Exhibit F by the Rights Holder Representative.
(c) Pursuant to Section 1.10(a)(iv), promptly following the Effective Time, Parent shall make or cause to be made by wire transfer of immediately available funds the payment, to act the Expense Fund, of an amount equal to the Rights Holders Expense Amount. The Rights Holders Expense Amount shall be used to fund any expenses incurred by the Rights Holder Representative in the name, place performance of its duties and stead of obligations hereunder. The Rights Holders Expense Amount will be held by the Securityholders for purposes of executing any documents and taking any actions that Rights Holder Representative until such time as the Rights Holder Representative maydetermines, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, that the Escrow Agreement Rights Holders and the Representative Engagement Agreement 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 Closing Cash Bonus Participants shall have no obligation to act on behalf of the 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 shall be entitled to 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 further expenses to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed incurred 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 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted Any portion of the Rights Holders Expense Amount remaining after such date shall be paid by the Rights Holder Representative to the Representative Group in this Agreement: (i) are coupled Rights Holders and Closing Cash Bonus Participants, with an interest each such Rights Holder and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Closing Cash Bonus Participant receiving its Pro Rata Amount of the Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount Share of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representativeamounts.
Appears in 1 contract
Representative. (a) Each In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Securityholders Net Asset Value and Adjusted Base Purchase Price, (ii) the waiver of any condition to the obligations of the Company Stockholders to consummate the transactions contemplated hereby irrevocably nominateand (iii) 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, constitute the Principal Stockholders, by their execution of this Agreement, and appoint Fortis Advisorsthe Other Company Stockholders, LLC by the approval of the Merger and adoption of this Agreement and/or their acceptance of any Buyer Common Shares pursuant to this Agreement, hereby designate the Representative as the exclusive agent and true and lawful their representative, attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 Personsagent.
(b) Each The Principal Stockholders, by their execution of this Agreement, and the Other Company Stockholders, by the approval of the Securityholders grants Merger and adoption of this Agreement and/or their acceptance of any Buyer Common Shares pursuant to this Agreement, (A) hereby authorize the Representative (i) to make all decisions relating to the Representative full authority determination of the Net Asset Value, the Adjusted Base Purchase Price and any increase or decrease in the Merger Consideration pursuant to executeSection 1.10, deliver(ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company and the Company Stockholders to consummate the transactions contemplated hereby, acknowledgeor 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, certify (iii) to give and file 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 the Securityholders Company Stockholders by the terms of this Agreement and (in B) approve the name of any or Escrow Agreement and all of the Securityholders or otherwise) any arrangements relating thereto, including the placement of the Escrow Shares and all documents that the Representative may, Shares in its sole discretion, determine the escrow established pursuant to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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 Securityholder1.11.
(c) All actions taken In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (acting by the Representative under this Agreement Representative or vote of the Representative Engagement Agreement 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 to Common Share basis)) shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available select another representative to any Securityholder to contest, negate or disaffirm fill the action vacancy of the Representative taken in good faith under this Agreementinitially chosen by the Company Stockholders, the Escrow Agreement or and such substituted representative shall be deemed to be the Representative Engagement for all purposes of this Agreement are waivedand the documents delivered pursuant hereto.
(d) The power A decision, act, consent or instruction of attorney granted in Section 8.1(a): (i) is coupled with an interest the Representative, including without limitation any agreement between the Representative and is irrevocable; (ii) the Buyer relating to the determination of the Net Asset Value and the Adjusted Base Purchase Price or the defense or settlement of any claims for which the Company Stockholders may be delegated required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof shall constitute a decision, act, consent or instruction of all Principal Stockholders and all Other Company Stockholders and shall be binding and conclusive upon each of such Persons and the Buyer, Surviving Corporation and Escrow Agent may rely upon any such decision, act, consent or instruction as being the decision, act, consent or instructions of each and every such Person. The Buyer, Surviving Corporation and Escrow Agent are hereby 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; and (iii) shall survive the dissolution, death or incapacity of each of the Securityholders.
(e) Securityholders At any time prior to the termination of the Escrow Agreement, the Representative may deliver to the Escrow Agent and the Buyer a notice, executed by the Representative (a "Reimbursement Notice"), which shall (i) state that the Representative and/or any of his or her agents or representatives has reasonably paid or incurred (or reasonably expects to pay or incur during the Escrow Period) fees and disbursements in connection with the performance of the Representative's obligations under this Agreement or the Escrow Agreement, including, but not limited to, the fees and expenses of legal counsel (a majority "Reimbursement Item"), (ii) state the aggregate amount of such Reimbursement Item and the amount of the Representative Shares necessary to satisfy the amount specified in interest the Reimbursement Item, and (determined based iii) specify in reasonable detail the nature and amount of each individual Reimbursement Item. The Escrow Agent shall, promptly upon receipt of such Reimbursement Notice, transfer to the Representative such amount as is equal to the lesser of (A) the number of Representative Shares claimed in the Reimbursement Notice or (B) the amount of any remaining Representative Shares. Within three business days following the termination of the Escrow Agreement, to the extent there are Representative Shares remaining at that time that have not been distributed to the Representative for reimbursement pursuant to this Section 1.12(e), the Escrow Agent shall release the remaining Representative Shares to the Exchange Agent for distribution to the Company Stockholders, 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 otherwise be unable to fulfill its responsibilities as agent terms of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Escrow Agreement.
(f) Certain Securityholders have entered into an engagement agreement (To the “Representative Engagement Agreement”) with extent the Representative is entitled to provide direction be reimbursed for a Reimbursement Item pursuant to Section 1.12(e) above and has not been reimbursed for such Reimbursement Item pursuant to Section 1.12(e) above, then immediately prior to the Representative in connection with its services under this Agreement, termination of the Escrow Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred prior to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability delivery of any kind Escrow Shares to any Securityholder or any other Person with respect the Company Stockholders pursuant to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 personsEscrow Agreement, and to the Representative will extent there are Escrow Shares remaining at that time that are not be liable subject 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. FurthermoreClaimed Amounts, the Representative shall be entitled to receive an amount of Escrow Shares equal to the Reimbursement Item that has not be required been reimbursed pursuant to take any action unless Section 1.12(e) above, or if there are not enough Escrow Shares remaining at such time, then the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient shall be entitled to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actionslesser amount of Escrow Shares.
(g) The Representative Group shall be indemnifiedBy his, 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 her or amounts paid in settlement (“Representative Expense”) arising from, based upon or with respect the Representative’s its execution and performance of this Agreement, each Principal Stockholder, and by his or her or its approval of the Escrow Merger and adoption of this Agreement, and/or their acceptance of any Buyer Common Shares pursuant to this Agreement, each Other Company Stockholder, agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative Engagement Agreement as to the determination of the Net Asset Value and the Adjusted Base Purchase Price, the settlement of any claims for 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 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 TransactionsRepresentative;
(ii) no Company Stockholder shall have any cause of action against the Representative for any action taken, decision made or otherwise in connection with acting as instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement by the Representative, ;
(iii) notwithstanding the provisions set forth in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow AmountSection 1.12(e) and (f), the Representative shall have be entitled to indemnification from the right Company Stockholders for all fees, expenses and liabilities incurred in such capacity in connection with this Agreement and the Escrow Agreement and each Company Stockholder agrees to recover indemnify the Representative Expenses from for all such amount before any distribution to the Securityholders, or amounts incurred in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal excess of the Representative Shares or any member amounts received pursuant to Section 1.12(f); provided however, that the liability of each Company Stockholder shall not exceed 125% of such Company Stockholder's pro rata share (based upon the Advisory Group and ratio that the Closing and/or any termination aggregate Merger Consideration payable to such Company Stockholder bears to the aggregate Merger Consideration) of such amount.
(iv) the provisions of this Agreement. The powersSection 1.12 are independent and severable, immunities are irrevocable and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the death, incompetence, bankruptcy or liquidation transactions contemplated by this Agreement;
(v) remedies available at law for any breach of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive provisions of this Section 1.12 are inadequate; therefore, the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party Buyer and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 Surviving Corporation shall be entitled to rely 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
(vi) the provisions of this Section 1.12 shall be binding upon the Pro Rata Amount executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Spreadsheet when setting forth any apportionment or distribution of payments required Company Stockholders shall mean and include the successors to be made the Company Stockholder's rights hereunder, whether pursuant to this Agreement.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Agreementtestamentary disposition, the Escrow Agreement laws of descent and distribution 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representativeotherwise.
Appears in 1 contract
Representative. (a) Each In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Securityholders Net Asset Value and Adjusted Base Purchase Price, (ii) the waiver of any condition to the obligations of the Company Stockholders to consummate the transactions contemplated hereby irrevocably nominateand (iii) 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, constitute the Principal Stockholders, by their execution of this Agreement, and appoint Fortis Advisorsthe Other Company Stockholders, LLC by the approval of the Merger and adoption of this Agreement and/or their acceptance of any Buyer Common Shares or Cash Merger Consideration pursuant to this Agreement, hereby designate the Representative as the exclusive agent and true and lawful their representative, attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 Personsagent.
(b) Each The Principal Stockholders, by their execution of this Agreement, and the Other Company Stockholders, by the approval of the Securityholders grants Merger and adoption of this Agreement and/or their acceptance of any Buyer Common Shares or Cash Merger Consideration pursuant to this Agreement, hereby authorize the Representative (i) to make all decisions relating to the Representative full authority determination of the Net Asset Value, the Adjusted Base Purchase Price and any increase or decrease in the Total Merger Consideration pursuant to executeSection 1.10, deliver(ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company and the Company Stockholders to consummate the transactions contemplated hereby, acknowledgeor 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, certify (iii) to give and file 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 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 Company Stockholders by the 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.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes terms of this Agreement.
(fc) Certain Securityholders have entered into an engagement agreement (In the “Representative Engagement Agreement”) with event that the Representative becomes unable to provide direction perform 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 to Common Share basis)) shall select another representative to fill the vacancy of the Representative in connection with its services under initially chosen by the Company Stockholders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement, the Escrow Agreement and the Representative Engagement Agreement documents delivered pursuant hereto. (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible d) All decisions and actions by applicable law, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect including without limitation any agreement between the Representative and the Buyer relating to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf the determination of the applicable Securityholder or other party Net Asset Value and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement Adjusted Base Purchase Price or the transactions contemplated hereby, the Representative may rely on the advice of counsel, accountants defense 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 settlement of any of its powers, rights, duties or privileges under this Agreement, claims for which the Escrow Agreement or any of the transactions contemplated hereby and thereby. Furthermore, the Representative shall not Company Stockholders may be required to take any action unless indemnify the Representative has been provided with fundsBuyer and/or the Surviving Corporation pursuant to Article VI hereof, 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 binding upon 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 TransactionsCompany Stockholders, or otherwise in connection with acting as the Representative, in each case as such Representative Expense is incurred. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative and no Company Stockholder shall have the right to recover object, dissent, protest or otherwise contest the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement 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. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amountsame.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 1 contract
Representative. (a) Each of the Securityholders Sellers hereby irrevocably nominate, constitute constitutes and appoint Fortis Advisors, LLC as appoints the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, Representative to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 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 shall be entitled to 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 Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the 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 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.
(c) All actions taken by the Representative under this Agreement Representative or and the Minority Sellers' Incremental Tax Payment Escrow Agreement, as and to the extent provided herein and therein. Each of the Sellers agrees to indemnify and hold harmless the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available reason of his acting or failing to any 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.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain Securityholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative act in connection with its services under this Agreement, the Escrow Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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 or by the Minority Sellers' Incremental Tax Payment Escrow Agreement and against any loss, liability or expense the Representative to expend may sustain or risk its own funds incur as a result of serving as Representative hereunder or otherwise incur any financial liability in under the exercise or performance of any of its powers, rights, duties or privileges under this Minority Sellers' Incremental Tax Payment Escrow Agreement, except such losses, liabilities and expenses which are determined in an arbitration proceeding to have resulted primarily from the Escrow Agreement gross negligence or any willful misconduct of the transactions contemplated hereby and therebyRepresentative. Furthermore, Each of the Sellers agrees that the Representative shall not be required have no liability whatsoever to take any action unless Seller or such Seller's beneficiaries, heirs or personal representatives for any matters arising out of this Agreement or the Minority Sellers' Incremental Tax Payment Escrow Agreement except, in the case of the Sellers, for liability for such matters which are determined in an arbitration proceeding to have resulted primarily from the gross negligence or willful misconduct of the Representative. Each of the Sellers hereby agrees to reimburse the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect upon the request of the Representative against the costsfor all reasonable expenses, expenses disbursements and liabilities which may be advances incurred or made 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 his duties under this Agreement, Agreement or under the Minority Sellers' Incremental Tax Payment 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the The Representative shall have the right authority to recover 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 and the Minority Sellers' Incremental Tax Payment Escrow Agreement, respectively.
(b) The initial Representative hereunder shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. In the event that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for any reason, shall fail or be unable to continue to serve as Representative, whether by reason of his death, incapacity, resignation or otherwise, then the successor Representative shall be elected by holders of a majority of the Seller Percentages reflected on Exhibit A hereto. The rights, powers, privileges and obligations of the Representative Expenses from named hereunder shall be possessed by any successor Representative with the same effect as though such amount before any distribution successor had originally been a party to the Securityholders, or this Agreement. The word "Representative" as used in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement shall survive the resignation or removal of means the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amountrepresentative acting hereunder.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and 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 Representative.
Appears in 1 contract
Representative. (a) Each In its capacity, the Administrative Agent is a “representative” of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as Secured Parties within the exclusive agent and true and lawful attorney-in-fact meaning of the Securityholdersterm “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, with full it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of substitutionattorney, to act in the name, place execute and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement 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 deliver on behalf of the Securityholders, except as expressly provided herein, Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations favor 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 shall be entitled to 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 Administrative Agent on behalf of the Securityholders Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 10.02; (ii) as permitted by, but only in accordance with, the name terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Securityholders or otherwise) any Lenders, as applicable, and all documents that upon at least five Business Days’ prior written request by the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything Borrower to the contrary contained in this Agreement or in any other Contract executed in connection with Administrative Agent, the Transactions, each Indemnitee Administrative Agent 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 is hereby irrevocably authorized by the Representative and on any other action taken or purported to be taken on behalf of any Securityholders by the Representative, Lenders to) execute such documents as fully binding upon such Securityholder.
(c) All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available necessary to any Securityholder to contest, negate or disaffirm evidence the action release of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the 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 otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or 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 Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain 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 Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). 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 (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the applicable Securityholder or other 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. To the extent any Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative shall have the right to recover the Representative Expenses from such amount before any distribution to the Securityholders, or in the event there are insufficient funds, directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers Liens granted to the Representative under this Agreement shall survive Administrative Agent for the resignation or removal benefit of the Representative Secured Parties herein or any member of pursuant hereto upon the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy Collateral that was sold or liquidation of the respective Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative 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 Agreementtransferred; 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.
(i) At the Closing, and without any act of any Securityholder, Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be 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 Representative’s Expense Fund Amount for retention by the Representative. 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’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders will not 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 to the Representative’s Expense Fund from any consideration otherwise distributable to the Securityholders. As soon as reasonably determined by the Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s Expense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Administrative Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative’s Expense Fund Amount shall not be deemed required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Escrow Fund and 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 RepresentativeCollateral.
Appears in 1 contract
Sources: Credit Agreement (Acxiom Corp)