Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as the exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders and shall have full power authority to represent, to give and receive notices and communications, to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this Agreement by Acquiror, to object to such releases, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten (10) days’ prior written notice to Acquiror. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration. (b) Certain Effective Time Holders have entered into an engagement agreement with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent engagement agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable for any act done or omitted hereunder as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold the Securityholders’ Agent Group harmless against any loss, liability, claim, damage, cost, fee, fine, judgment, amount paid in settlement or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his duties hereunder. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. (c) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). (d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution to the Effective Time Holders.
Appears in 1 contract
Sources: Merger Agreement (INPHI Corp)
Securityholders Agent. (a) The In the event that the Merger and the Subsidiary Merger are approved by the Former Securityholders’ Agent , effective upon such approvals, and without further act of any Former Securityholder, ▇▇ ▇▇ shall be constituted and appointed as the exclusive agent and attorney-in-fact (the “Securityholders’ Agent”) for each Former Securityholder (except holders of capital stock of Amerifit, if any, as shall have perfected their appraisal or dissenters’ rights under the DGCL). Except as otherwise provided in the last sentence of this Section 11.6(a) the Securityholders’ Agent shall have the authority to act for and on behalf of the Effective Time Holders and shall have full power authority to representFormer Securityholders, including, without limitation, to give and receive notices and communications, to act on behalf of the Former Securityholders with respect to the Escrow Account and any other matters arising under this Agreement or the other Transaction Documents, to authorize the release delivery to Parent of any portion funds and property in its possession or in the possession of the Escrow Consideration to Acquiror Agent in satisfaction of claims under this Agreement by AcquirorParent, to object to such releasesdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand commence, prosecute, participate in, settle, dismiss or otherwise terminate, as applicable, lawsuits and claims, mediation and arbitration proceedings, to retain funds which would otherwise be released to the Former Securityholders from the Escrow Account for the purpose of funding the costs of any such proceedings and to comply with orders of courts and awards of courts, mediators and arbitrators with respect to such claimssuits, to act on the Effective Time Holders’ behalf with respect to the matters set forth hereinclaims or proceedings, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the The Securityholders’ Agent shall have no obligation to act on behalf for all purposes be deemed the sole authorized agent of the Effective Time Holders, except Former Securityholders until such time as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Scheduleagency is terminated. The Securityholders’ Agent may resign at any time and such Such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration Former Securityholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to AcquirorParent; provided, however, that the Securityholders’ Agent may not be removed unless holders of at least two-thirds interest in the Merger Consideration agree to such removal and to the identity of the substituted Securityholders’ Agent. Any vacancy in the position of Securityholders’ Agent may be filled by approval of the recipients of a majority of the Merger Consideration. No bond shall be required of the Securityholders’ Agent, and the Securityholders’ Agent shall not receive compensation for its services. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time HoldersFormer Securityholders during the term of the agency. Material notices or communications to the Securityholders’ Agent will be forwarded promptly to each of the Former Securityholders. Notwithstanding anything in this Section 11.6 to the contrary, the Securityholders’ Agent may not: (i) accept service of process on behalf of any Former Securityholder in its individual capacity; or (ii) take any action on behalf of a Former Securityholder with respect to any claim that may be asserted against such Former Securityholder in its individual capacity, whether for alleged fraud or otherwise, unless it has received the written consent of the Former Securityholder to take any such action.
(b) The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon not incur any signature believed liability with respect to any action taken or suffered by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders have entered into an engagement agreement with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent engagement agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable for any act done or omitted hereunder as Securityholders’ Agent while acting in good faith and its capacity as Securityholders’ Agent. The Securityholders’ Agent may, in the exercise of reasonable judgment and any act done or omitted pursuant to all questions arising hereunder, rely on the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders shall severallyand other professionals and for anything done, in accordance with their Pro Rata Portion, indemnify, defend and hold omitted or suffered by the Securityholders’ Agent Group shall not be liable to anyone while acting in its capacity as Securityholders’ Agent (unless arising out of gross negligence or willful misconduct). The Securityholders’ Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no other covenants or obligations shall be implied under this Agreement against the Securityholders’ Agent; provided, however, that the foregoing shall not act as a limitation on the powers of the Securityholders’ Agent determined by it to be reasonably necessary to carry out the purposes of its obligations. The Former Securityholders, on a pro rata basis, shall indemnify the Securityholders’ Agent and hold it harmless against any loss, liability, claim, damage, cost, fee, fine, judgment, amount paid in settlement liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent (unless arising out of its gross negligence or willful misconduct) and arising out of or in connection with the acceptance or administration of his its duties hereunderunder this Agreement. Such The Securityholders’ Agent Expenses may shall be recovered firstentitled to satisfy any such loss, liability and expense from the Expense Fund, second, from any distribution proceeds of the Expense Reserve Amount, or if the amount of the loss, liability or expense exceeds the Expense Reserve Amount, the Escrow Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that Amount received by the Securityholders’ Agent shall not be required for distribution to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Former Securityholders on a pro rata basis.
(c) The Securityholders’ Agent shall not be required may use the Expense Reserve Amount to take any action unless pay the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent under the authorization granted in performing such actionsSection 11.6(a) and to satisfy the indemnification obligations of the Former Securityholders to the Securityholders’ Agent pursuant to Section 11.6(b). The immunities and rights However, the Expense Reserve Amount shall not serve as a cap on the Former Securityholders’ obligation to indemnification shall survive indemnify the resignation or removal Securityholders’ Agent pursuant to Section 11.6(b). Any Expense Reserve Amount remaining after payment of all of the Securityholders’ Agent’s expenses following the later of (i) the resolution of all indemnification claims under Article XI hereof and the determination by the Securityholders’ Agent or any member that such funds are no longer necessary in connection with indemnification claims that may be brought thereunder and (ii) the payment of the Advisory Group and maximum amount recoverable by the Closing and/or Parent Indemnified Parties from the Former Securityholders, if any, shall be distributed to the Former Securityholders on a pro rata basis. The Expense Reserve Amount shall not be available to any termination of this Agreement and the Escrow AgreementParent Indemnified Party to satisfy any claims hereunder.
(cd) The When discharging its duties hereunder with regard to third party claims for which any of the Parent Indemnified Parties have made a claim for indemnification pursuant to Section 11.1 of this Agreement, the Securityholders’ Agent shall have reasonable access to information about Target the Company and the Target Subsidiaries Parent and the reasonable assistance of Targetthe Surviving Company’s and the TargetParent’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target the Surviving Company or any Target Subsidiary Parent to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution to the Effective Time Holders.information
Appears in 1 contract
Securityholders Agent. (a) The By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to irrevocably agree, constitute and appoint the Securityholders’ Agent shall be constituted (and appointed by the execution of this Agreement as Securityholders’ Agent as of the date hereof, the Securityholders’ Agent hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact for of each of the Company Securityholder and on behalf Indemnifying Parties as of the Effective Time Holders Time, for all purposes in connection with this Agreement, the Transaction Documents and shall have full power authority to representthe transactions contemplated hereby and thereby, to give including in connection with claims for indemnification under Article 8 and receive notices and communications, to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this Agreement by Acquiror, to object to such releases, to agree to, negotiate, and enter into settlements and execute settlements, adjustments and compromises of, and respond to or object to notices, demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any claims or disputes hereunder, to consent and vote in favor of the adoption of this Agreement and the transactions contemplated hereby, including pursuant to any proxies granted to it under any Merger Support Agreement and otherwise exercising any rights granted to it under any Merger Support Agreement to give effect to such claims, Merger Support Agreement and to act on the Effective Time Holders’ behalf with respect this Agreement and to the matters set forth hereintransactions contemplated hereby, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation accomplishment of the foregoing (ii) specifically mandated or permitted by the terms of this Agreement and accomplishment or any Merger Support Agreement, (iii) or as may otherwise be needed in furtherance of the foregoingSecurityholders’ Agent’s obligations under this Agreement and the agreements ancillary hereto, including updating the Consideration Spreadsheet from time to time as may be required or necessary to give effect to the terms hereof. Notwithstanding Such actions may include collecting from Company Securityholders and providing to the foregoingAcquirer documents in connection with discovery or other information requests pursuant to any legal process. The Acquirer and its Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of the Securityholders’ Agent and treat such Securityholders’ Agent as the duly appointed attorney-in-fact of each Company Securityholder and as having the duties, power and authority provided for in this Section 8.10. By approving this Agreement, each Company Securityholder agrees that all actions taken by the Securityholders’ Agent under this Agreement shall be binding upon such Company Securityholder and its successors, as if such action was expressly confirmed and ratified in writing by such Company Securityholder. This power of attorney is coupled with an interest and is irrevocable.
(b) The Securityholders’ Agent may be removed by action of the Indemnifying Parties that are entitled to receive a majority of the Merger Consideration. In the event of the resignation, removal, death, or incapacity of the Securityholders’ Agent, a successor Securityholders’ Agent shall thereafter be appointed by vote or written consent of Indemnifying Parties that are entitled to receive a majority of the Merger Consideration, and such appointment shall become effective only upon written notice by such Indemnifying Parties to Acquirer. Any new or successor Securityholders’ Agent will assume all rights and obligations of the initial Securityholders’ Agent under this Agreement.
(c) Solely as between the Securityholders’ Agent and the Indemnifying Parties, the Securityholders’ Agent shall have will incur no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten (10) days’ prior written notice to Acquiror. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation liability of any Effective Time Holder and shall be binding on kind with respect to any successor thereto, and (ii) shall survive the delivery of an assignment action or omission by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders have entered into an engagement agreement with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under pursuant to this Agreement, the Escrow Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Securityholders’ Agent’s fraud, gross negligence or willful misconduct. Solely as between the Securityholders’ Agent engagement agreement (such Effective Time Holdersand the Indemnifying Parties, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall not be liable for any act done action or omitted hereunder as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faithcounsel. The Effective Time Holders Indemnifying Parties shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold harmless the Securityholders’ Agent Group harmless from and against any lossand all losses, liabilityliabilities, claimdamages, damageclaims, costpenalties, feefines, fineforfeitures, judgmentactions, amount paid in settlement or expense fees, costs and expenses (including fees, disbursements the fees and costs expenses of counsel and other skilled professionals experts and in connection with seeking recovery from insurerstheir staffs and all expense of document location, duplication and shipment) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration Securityholders’ Agent’s execution and performance of his duties hereunder. Such this Agreement and any agreements ancillary hereto, in each case as such Securityholders’ Agent Expenses may be recovered firstExpense is suffered or incurred; provided, from that in the event that any such Securityholders’ Agent Expense Fundis finally adjudicated to have been directly caused by the fraud, second, from any distribution gross negligence or willful misconduct of the Escrow Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. FurthermoreAgent, the Securityholders’ Agent shall not be required will reimburse the Indemnifying Parties the amount of such indemnified Securityholders’ Agent Expense to take any action unless the extent attributable to such fraud, gross negligence or willful misconduct. In no event will the Securityholders’ Agent has been be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Indemnifying Parties set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actionsunder this section. The immunities and rights to indemnification shall foregoing indemnities will survive the Closing, the resignation or removal of the Securityholders’ Agent or the termination of this Agreement.
(d) Any notice or communication given or received by, and any member decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Securityholders’ Agent that is within the scope of the Advisory Group Securityholders’ Agent’s authority under this Section 8.10 shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Securityholders and shall be final, binding and conclusive upon each such Company Securityholder; and each Indemnified Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Securityholders. The Acquirer, Merger Sub, Merger Sub II, the Surviving Corporation, the Surviving Company and the Closing and/or Indemnified Persons are hereby relieved from any termination Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Securityholders’ Agent.
(e) The Securityholders’ Agent hereby represents and warrants that it has all necessary corporate power and authority to enter into this Agreement and the other Transaction Documents to which it is a party; and the execution, delivery and performance by the Securityholders’ Agent of this Agreement and the Escrow Agreement.
(c) The Securityholders’ Agent shall have reasonable access other Transaction Documents to information about Target and which it is a party in accordance with the Target Subsidiaries and respective terms thereof has been duly authorized according to all necessary corporate action on the reasonable assistance part of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially Agent. This Agreement and not disclose any nonpublic information from or about Target or any Target Subsidiary the other Transaction Documents to anyone (except on which it is a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closingparty, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall when executed and delivered, will be held duly executed and delivered by the Securityholders’ Agent in a segregated client account and, assuming the due authorization, execution and shall be used (i) for delivery by the purposes other parties hereto, constitute the legal, valid and binding obligation of paying directly or reimbursing the Securityholders’ Agent, enforceable against the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant in accordance with its terms, subject only to this Agreementthe effect, if any, of (i) applicable bankruptcy and other similar laws affecting the Escrow Agreement or any Securityholders’ Agent letter agreement, or rights of creditors generally and (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervisionrules of law governing specific performance, recommendations or advice injunctive relief and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution to the Effective Time Holdersequitable remedies.
Appears in 1 contract
Securityholders Agent. (a) The Securityholders’ Agent shall be constituted By virtue of the adoption of this Agreement by the Company Stockholders, the Effective Time Holders irrevocably nominate, constitute and appointed appoint Blueprint Ventures Management I, LLC as the agent and true and lawful exclusive agent proxy and attorney-in-fact of the Effective Time Holders (the “Securityholders’ Agent”), with full power of substitution and resubstitution, to act solely and exclusively in the name, place and stead of the Effective Time Holders for purposes of executing any documents and taking any actions that the Securityholders’ Agent may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with any of the Transactional Agreements or any of the Transactions, including but not limited to the power:
(i) to act for the Effective Time Holders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to pay or compromise any indemnity claim on behalf of the Effective Time Holders;
(ii) to act for the Effective Time Holders with regard to matters pertaining to litigation or arbitration;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby or amendments or waivers thereto that the Securityholders’ Agent deems necessary or appropriate;
(iv) to receive funds (including all or any portion of the Final Merger Consideration), make payments of funds, and give receipts for funds on behalf of any Effective Time Holder;
(v) to receive funds for the payment of expenses of the Effective Time Holders and apply such funds in payment for such expenses;
(vi) to direct any payments due under the Transaction Bonus Plan;
(vii) to do or refrain from doing any further act or deed on behalf of the Effective Time Holders that the Securityholders’ Agent deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and shall have full power authority completely as the Effective Time Holders could do if personally present;
(viii) to representcommunicate to, to give and receive all communications and notices from, Parent, Merger Sub and communications, the Company;
(ix) to authorize the release receive service of process in connection with any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this Agreement by AcquirorAgreement;
(x) engage attorneys, to object to such releasesaccountants, to agree tofinancial and other advisors, negotiate, enter into settlements paying agents and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions other persons necessary or appropriate in the judgment of the Securityholders’ Agent for Agent; and
(xi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all actions that the interpretation of Securityholders’ Agent, in its sole discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and accomplishment the Escrow Agreement. Blueprint Ventures Management I, LLC hereby accepts its appointment as the Securityholders’ Agent.
(b) The appointment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten (10) days’ prior written notice to Acquiror. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are deemed coupled with an interest and shall be irrevocable irrevocable, and survive Parent, Merger Sub, the deathCompany and any other Person, incompetenceincluding the Escrow Agent and the Paying Agent, bankruptcy may conclusively and absolutely rely, without inquiry, upon any instruction, decision or liquidation action of the Securityholders’ Agent in all matters referred to herein or in any of the Transactional Agreements to which the Securityholders’ Agent is a party. The Securityholders’ Agent is hereby appointed the agent and attorney-in-fact of the Effective Time Holder Holders to take the actions set forth herein. All actions of the Securityholders’ Agent shall be deemed to be facts ascertainable outside this Agreement and shall be binding on any successor theretothe Effective Time Holders as a matter of contract law and the law of the State of Delaware. Any instruction, decision or action taken or made by the Securityholders’ Agent must be in writing and (ii) must be signed by the Securityholders’ Agent. The Securityholders’ Agent shall survive the delivery of an assignment by not be responsible to any Effective Time Holder of for any damages which the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders have entered into an engagement agreement with may suffer by the performance of the Securityholders’ Agent’s duties under this Agreement or the other Transactional Agreements to which the Securityholders’ Agent is a party (in its capacity as Securityholders’ Agent), other than damages arising from willful violation of applicable law or gross negligence in the performance of such duties hereunder and thereunder. The Securityholders’ Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties or Liabilities shall be read into this Agreement or shall otherwise exist against the Securityholders’ Agent. The Securityholders’ Agent Fund shall be used to provide direction pay expenses incurred by the Securityholders’ Agent. The Securityholders’ Agent is authorized to replenish the Securityholders’ Agent Fund with funds that would otherwise be distributed from the Escrow Amount to the Effective Time Holders, if at that time there have been expenditures from the Securityholders’ Agent Fund or if the Securityholders’ Agent in its discretion believes it necessary to maintain or increase the Securityholders’ Agent Fund at that time. Any portion of the Securityholders’ Agent Fund not expended upon the full release of the Escrow Amount shall be released by the Escrow Agent to the Securityholders’ Agent on behalf of each Effective Time Holder based on their respective Securityholders’ Agent Fund Contributions, all in accordance with the terms of the Escrow Agreement. All expenses incurred by the Securityholders’ Agent in connection with the performance of its services under this Agreement, the Escrow Agreement and the duties as Securityholders’ Agent engagement agreement (such shall be borne and paid by the Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”)holders. Neither the The Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall not be liable for any act done or omitted hereunder as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment faith, and any act done or omitted to be done pursuant to the advice of counsel or any other expert, consultant or advisor retained by the Securityholders’ Agent shall be conclusive evidence of such good faith. The By virtue of the adoption of this Agreement by the Company Stockholders, the Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold hereby agree (A) to reimburse the Securityholders’ Agent Group harmless against any loss, liability, claim, damage, cost, fee, fine, judgment, amount paid in settlement or expense (including fees, disbursements for all out-of-pocket costs and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Securityholders’ Agent Expenses”) expenses incurred without gross negligence or bad faith on the part of by the Securityholders’ Agent under this Agreement or the other Transactional Agreements to which the Securityholders’ Agent is a party, including fees for any attorneys or other representative it may employ, and (B) to severally indemnify and hold harmless and defend the Securityholders’ Agent, its agents and assigns against all Liabilities (including legal and other professional fees and expenses, and litigation costs) and actions of any kind (whether known or unknown) arising out of or in connection with (x) the acceptance or administration of his duties hereunder. Such Securityholders’ Agent Expenses may be recovered firstAgent’s omissions to act, from or actions taken, resulting from, arising out of, or incurred in connection with, or otherwise with respect to, this Agreement or the Expense Fund, second, from any distribution of the Escrow Consideration otherwise distributable other Transactional Agreements to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that which the Securityholders’ Agent shall not be required to expend is a party (in its capacity as Securityholders’ Agent), or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant (y) services taken with respect to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, other Transactional Agreements to which the Securityholders’ Agent is a party (in its capacity as Securityholders’ Agent), or reasonably believed to be in the scope of the Securityholders’ Agent’s authority; provided, however, that the maximum aggregate Damages payable by each Effective Time Holder pursuant to this Section 10.1 shall not be required such Effective Time Holder’s Pro Rata Share of the Merger Consideration.
(c) Notwithstanding anything to take the contrary contained in any action unless of the Transactional Agreements:
(i) Parent and Merger Sub shall be entitled to deal exclusively with the Securityholders’ Agent has been provided with fundson all matters relating to the respective Transactional Agreements and the respective Transactions (including all matters relating to any notice to, security or indemnities whichany Consent to be given or action to be taken by, in its determination, are sufficient any Effective Time Holder); and
(ii) each Indemnitee shall be entitled to protect the Securityholders’ Agent against the costs, expenses and liabilities which may rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be incurred executed on behalf of any Effective Time Holder by the Securityholders’ Agent in performing such actions. The immunities Agent, and rights on any other action taken or purported to indemnification shall survive the resignation or removal be taken on behalf of any Effective Time Holder by the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementAgent, as fully binding upon such Effective Time Holder.
(cd) The Securityholders’ Agent shall be entitled to treat as genuine, and as the document it purports to be, any letter, facsimile, telex, portable document file (.pdf) or other document that is believed by it to be genuine and to have reasonable access been telexed, telegraphed, faxed, emailed or cabled by a Effective Time Holder or to information about Target have been signed and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that presented by a Effective Time Holder.
(e) If the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from die, become disabled or about Target otherwise be unable to fulfill its responsibilities hereunder, the Effective Time Holders shall, within ten (10) days after such death or any Target Subsidiary to anyone (except on disability, appoint a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire successor to the Securityholders’ Agent $1,000,000 (and immediately thereafter notify Parent of the “Expense Fund Amount”)identity of such successor. The Expense Fund Amount Any such successor shall be held by succeed the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the as Securityholders’ Agent hereunder. If for any reason there is no Securityholders’ Agent Expenses incurred pursuant to this Agreementat any time, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign all references herein to the Securityholders’ Agent any such interest. Subject shall be deemed to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution refer to the Effective Time Holders.
(f) The parties agree that the fact that ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may have represented the Company prior to the Closing shall not prevent ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP from representing the Securityholders’ Agent in connection with any matters involving, including any disputes with, any of the parties after the Closing.
Appears in 1 contract
Securityholders Agent. (a) The By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger and the consummation of the Merger, and execution of a Stockholder Joinder and Release Agreement and/or Optionholder Release Agreement, or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Indemnifying Person shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC as the Securityholders’ Agent shall be constituted and appointed Agent, to act as the representative, exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders and shall have full power authority to represent, to give and receive notices and communications, to authorize the release of any portion of the Escrow Consideration to Acquiror Indemnifying Persons for all purposes in satisfaction of claims under this Agreement by Acquiror, to object to such releases, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply connection with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten this
(10b) days’ prior written notice to Acquiror. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders have entered into an engagement agreement with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent engagement agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall not be liable to any Indemnifying Person for any act done or omitted hereunder as in connection with the Securityholders’ Agent Agent’s services pursuant to this Agreement and any agreements ancillary hereto while acting in good faith and in the exercise of reasonable judgment (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), except in the event of liability directly resulting from the Securityholders’ Agent’s gross negligence, willful misconduct or bad faith. The Effective Time Holders Securityholders’ Agent shall severally, not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Persons shall severally and not jointly and in accordance with their respective Pro Rata Portion, indemnify, defend Share indemnify the Securityholders’ Agent and hold the Securityholders’ Agent Group harmless from and against any lossand all losses, liabilityliabilities, claimdamages, damageclaims, costpenalties, feefines, fineforfeitures, judgmentactions, amount paid in settlement or expense fees, costs and expenses (including fees, disbursements the reasonable and costs documented fees and expenses of counsel and other skilled professionals experts and in connection with seeking recovery from insurerstheir staffs and all expense of document location, duplication and shipment) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the Securityholders’ Agent’s acceptance or administration of his duties hereunder. Such Securityholders’ this Agreement and any agreements ancillary hereto (collectively, “Agent Expenses may be recovered firstLosses”), from in each case as such Agent Loss is suffered or incurred; provided, that in the Expense Fundevent that any such Agent Loss is finally adjudicated to have been directly caused by the gross negligence, second, from any distribution willful misconduct or bad faith of the Escrow Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. FurthermoreAgent, the Securityholders’ Agent shall not be required will reimburse the Indemnifying Persons the amount of such indemnified Agent Loss to take any action unless the Securityholders’ Agent has been provided with funds, security extent attributable to such gross negligence or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementwillful misconduct.
(c) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and If not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire paid directly to the Securityholders’ Agent $1,000,000 by the Indemnifying Persons, the Agent Losses shall be satisfied (i) from the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) the Holdback Fund at such time as the remaining amounts would otherwise determined by be distributable to the Advisory Group Indemnifying Persons and (iii) to the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal extent the amount of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign Losses exceeds amounts available to the Securityholders’ Agent under (i), from each Indemnifying Person, severally and not jointly and in proportion to its Pro Rata Share; provided, that while this section allows the Securityholders’ Agent to be paid from the Expense Fund Amount and the Holdback Fund, this does not relieve the Indemnifying Persons from their obligation to promptly pay such Agent Losses as they are suffered or incurred, nor does it prevent the Securityholders’ Agent from seeking any such interestremedies available to it at law or otherwise. Subject For the avoidance of doubt, in no event shall the
(d) Any notice or communication given or received by, and any decision, action, failure to Advisory Group approvalact (whether or not within a designated period of time), agreement, consent, settlement, resolution or instruction of, the Securityholders’ Agent may contribute funds to that is within the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by scope of the Securityholders’ Agent that Agent’s authority under Section 9.8(a) shall constitute a notice or communication to or by, or a decision, action, failure to act (whether or not within a designated period of time), agreement, consent, settlement, resolution or instruction of all the Expense Fund is no longer required Indemnifying Persons and shall be final, binding and conclusive upon each such Indemnifying Person; and each Indemnified Person shall be entitled to be withheldrely upon any such notice, the Securityholders’ Agent shall distribute the remaining Expense Fund communication, decision, action, failure to act (if any) whether or not within a designated period of time), agreement, consent, settlement, resolution or instruction as being a notice or communication to the Payment Agent for further distribution or by, or a decision, action, failure to the Effective Time Holdersact within a designated period of time, agreement, consent, settlement, resolution or instruction of each and every such Indemnifying Person.
Appears in 1 contract
Securityholders Agent. (a) The Securityholders’ Agent Timeline Venture Management, LLC, a California limited liability company, shall be constituted and appointed as the exclusive agent and attorney-in-fact ("SECURITYHOLDERS' AGENT") for and on behalf of the Effective Time Holders and shall have full power authority to represent, Company Stockholders to give and receive notices and communications, to authorize the release of any portion of the Escrow Consideration payment to Acquiror Parent and Surviving Corporation pursuant to Section 8 in satisfaction of claims under this Agreement by AcquirorIndemnification Claims, to object to such releasesdeliveries and to make claims on behalf of the Company Stockholders pursuant to Section 8, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsIndemnification Claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 resolve any Indemnification Claims and to take all actions necessary or appropriate in the judgment of the Securityholders’ ' Agent for the interpretation of this Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such Such agency may be changed by the vote holders of Effective Time Holders representing a majority in interest of the Escrow Consideration Convertible Promissory Notes, and the shares issuable upon conversion thereof, from time to time upon not less than ten (10) 10 days’ ' prior written notice to AcquirorParent. No bond shall be required of the Securityholders’ ' Agent, and the Securityholders' Agent shall receive no compensation for his services. Notices or communications to or from the Securityholders’ ' Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow ConsiderationCompany Stockholders.
(b) Certain Effective Time Holders have entered into an engagement agreement with the The Securityholders’ ' Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent engagement agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall not be liable for any act done or omitted hereunder as Securityholders’ ' Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders Company Stockholders shall severally, in accordance with their Pro Rata Portion, indemnify, defend severally indemnify the Securityholders' Agent and hold the Securityholders’ Agent Group him harmless against any loss, liability, claim, damage, cost, fee, fine, judgment, amount paid in settlement liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ ' Agent and arising out of or in connection with the acceptance or administration of his duties hereunder. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Securityholders’ ' Agent shall have reasonable access to information about Target and the Target Subsidiaries Company and the reasonable assistance of Target’s and the Target’s Subsidiaries’ Company's officers and employees for purposes of performing its his duties and exercising its his rights hereunder, provided that the Securityholders’ ' Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution to the Effective Time Holders.
Appears in 1 contract
Sources: Merger Agreement (Nexprise Inc)
Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as the exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders Securityholders and shall have full power authority to represent, to give and receive notices and communications, to authorize the Escrow Agent to release of any portion of the Escrow Consideration Fund to Acquiror in satisfaction of claims under this Agreement by Acquiror, to release any portion of the Securityholders’ Agent Holdback Amount to the Securityholders, as applicable, object to such releasesdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time HoldersSecurityholders’ behalf with respect to the matters set forth herein, in accordance with the terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 2.13 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement and the Securityholders’ Agent engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such Such agency may be changed by the vote holders of Effective Time Holders representing a majority in interest of the Escrow Consideration Fund from time to time upon not less than ten (10) days’ prior written notice to Acquiror. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. Securityholders.
(b) The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders have entered into an engagement agreement with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent engagement agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall not be liable for any act done or omitted hereunder as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders Securityholders shall severally, in accordance with their Pro Rata Portion, indemnify, defend severally indemnify and hold the Securityholders’ Agent Group harmless against any loss, liability, claim, damage, cost, fee, fine, judgment, amount paid in settlement liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his his, her or its duties hereunder. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Consideration otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Securityholders’ Agent shall have reasonable access to information about Target and the Target, Target Subsidiaries and Target Related Businesses and the reasonable assistance of Target’s and the Target’s Target Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target, any Target Subsidiary or any Target Subsidiary Related Business to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, acknowledges that the Securityholders’ Agent may contribute funds have a conflict of interest with respect to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon its duties as reasonably determined by Securityholders’ Agent, and in such regard the Securityholders’ Agent has informed Acquiror that it will act in the Expense Fund is no longer required to be withheld, best interests of the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution to the Effective Time Holders.
Appears in 1 contract
Sources: Merger Agreement (Nuvasive Inc)
Securityholders Agent. (a) By the adoption of the Merger, and by receiving the benefits hereof, including any consideration payable hereunder, and without any further action of any of the Company Securityholders or the Company, each Company Securityholder shall be deemed to have approved Fortis Advisors LLC, a Delaware limited liability company, as the Securityholders’ Agent as of Closing for all purposes in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement. The Securityholders’ Agent shall be constituted and appointed as the exclusive agent agent, representative and true and lawful attorney-in-fact for and on behalf of the Effective Time Holders Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and shall have full power authority to representthe Securityholders’ Agent Engagement Agreement; (ii) following the Closing, to give and receive notices notices, instructions and communicationscommunications permitted or required under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement, for and on behalf of any Company Securityholder, to authorize or from Acquirer relating to this Agreement, the release Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement and any other matters contemplated by this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Securityholder individually); (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration (and each of the components thereof); (iv) update the calculations provided in the Spreadsheet and deliver or cause to be delivered an updated version of the Spreadsheet pursuant to Section 1.6 or Article VIII; (v) pursuant to Section 1.7, review, negotiate, object to, accept or agree to Acquirer’s calculation of any portion Milestone Payment or Net Revenue in any Fiscal Year; (vi) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Consideration Account pursuant to Acquiror in satisfaction the terms of claims under this Agreement Section 1.6 or Article VIII hereof (including by Acquiror, not objecting to such claims); (vii) object to such releases, claims pursuant to Section 1.6 or Article VIII; (viii) consent or agree to, negotiate, enter into into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with orders Orders of courts and awards of arbitrators with respect to to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to act on the Effective Time HoldersTransactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Securityholder or deemed necessary or appropriate in the sole judgment of the Securityholders’ behalf Agent in connection with the Securityholders’ Agent’s obligations, powers and authority hereunder, under the Escrow Agreement, the Exchange Agent Agreement or under the Securityholders’ Agent Engagement Agreement and all of the other terms, conditions and limitations of this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ix) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Securityholders; (x) following the Closing, consent or agree to any amendment to this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement or to waive any terms and conditions of this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement providing rights or benefits to the Company Securityholders (other than with respect to the matters set forth herein, issuance of the Merger Consideration) in accordance with the terms hereof or thereof and provisions set forth herein, including giving in the manner provided herein or therein; and receiving all notices (xi) take or refrain from taking any and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the sole judgment of the Securityholders’ Agent for in connection with the interpretation Securityholders’ Agent’s obligations, powers and authority hereunder, under the Escrow Agreement, the Exchange Agent Agreement or under the Securityholders’ Agent Engagement Agreement , in each case without having to seek or obtain the consent of this Agreement and accomplishment of the foregoingany Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time HoldersCompany Securityholders, except as expressly provided herein and herein, in the Escrow Agreement, in the Exchange Agent Agreement and or in the Securityholders’ Agent engagement agreementEngagement Agreement. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Fortis Advisors LLC, a Delaware limited liability company, as the Securityholders’ Agent and treat such Securityholders’ Agent as the duly appointed true and lawful attorney-in-fact of each Company Securityholder and as having the duties, power and authority provided for in this Section 9.1. Each Company Securityholder and such Company Securityholder’s successors shall be bound by all actions taken and documents executed by the Securityholders’ Agent under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement as if expressly confirmed and ratified in writing by such Company Securityholder, and for purposes all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of claritythe Securityholder’s Agent taken in good faith under this Agreement, there the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are no obligations waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure ScheduleAgent. The Person serving as the Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration removed or replaced from time to time, or if such Person resigns from his, her or its position as the Securityholders’ Agent, then a successor may be appointed, by the Company Securityholders collectively holding a majority of the shares of Company Capital Stock as of immediately prior to the Effective Time (on an as-converted to Company Common Stock basis) as of such time upon not less than ten (10) 30 days’ prior written notice to AcquirorAcquirer. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders Company Securityholders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent engagement agreement Engagement Agreement (such Effective Time HoldersCompany Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) ), shall be liable to any Company Securityholder for any action or failure to act done in connection with the acceptance or omitted hereunder as administration of the Securityholders’ Agent’s responsibilities hereunder, under the Escrow Agreement or under the Securityholders’ Agent while acting in good faith Engagement Agreement, unless and in the exercise of reasonable judgment and any act done or omitted pursuant only to the advice of counsel shall be conclusive evidence of extent such good faithaction or failure to act constitutes gross negligence or willful misconduct. The Effective Time Holders Company Securityholders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold harmless the Securityholders’ Agent Group harmless against any lossand all losses, liabilityclaims, claimdamages, damageliabilities, costfees, feecosts, fine, judgment, amount paid in settlement or expense expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) ), judgments, fines or amounts paid in settlement (collectively, the “Securityholders’ Agent ExpensesRepresentative Losses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with this Agreement, the acceptance Escrow Agreement, the Exchange Agent Agreement or administration of his duties hereunder. Such the Securityholders’ Agent Expenses Engagement Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Securityholders’ Agent, the Securityholders’ Agent will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered first, by the Securityholders’ Agent from (i) the funds in the Expense Fund, second, from (ii) any distribution of other funds that become payable to the Escrow Consideration Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Effective Time Holders at the time of distributionCompany Securityholders, and third, (iii) directly from the Effective Time HoldersCompany Securityholders; provided, that while the Securityholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. The Effective Time Holders Company Securityholders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Exchange Agent Agreement, the Securityholders’ Agent Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholders’ Agent hereunder. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Company Securityholder and shall be binding on any successor thereto; and (ii) subject to the limitations on assignment in Section 1.3(b), shall survive the resignation delivery of an assignment by any Company Securityholder of the whole or removal any fraction of his, her or its interest in the Adjustment Escrow Fund and/or the Indemnity Escrow Fund.
(c) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Securityholders’ Agent that is within the scope of the Securityholders’ Agent Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Securityholders and shall be final, binding and conclusive upon each such Company Securityholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any member such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Securityholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.Securityholders’ Agent
(cd) The Securityholders’ Agent shall have reasonable access be entitled to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for rely upon the purposes of paying directly or reimbursing Spreadsheet delivered by the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred Company to Acquirer prior to the Closing pursuant to this AgreementSection 5.8, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) as otherwise determined rely upon any signature believed by the Advisory Group it to be genuine and (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Expense Fund other than as a result of its gross negligence applicable Company Securityholder or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent for further distribution to the Effective Time Holdersparty.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Castle Biosciences Inc)
Securityholders Agent. (a) The Securityholders’ Agent shall be constituted and appointed as the exclusive agent and attorney-in-fact for and on behalf of the Effective Time Holders and shall have full power authority to represent, to give and receive notices and communications, to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this Agreement by Acquiror, to object to such releases, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, in accordance with the terms and provisions set forth herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in this Section 9 and to take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the interpretation of this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement and accomplishment of the foregoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and herein, in the Escrow Agreement and in the Securityholders’ Agent engagement agreementEngagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Target Disclosure Schedule. The Securityholders’ Agent may resign at any time and such agency may be changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration from time to time upon not less than ten (10) days’ prior written notice to Acquiror. The immunities and rights to indemnification between the Effective Time Holders and the Securityholders’ Agent and Advisory Group shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Agent. Notices or communications to or from the Securityholders’ Agent shall constitute notice to or from each of the Effective Time Holders. The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party. The powers, immunities and rights to indemnification granted to the Securityholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Effective Time Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or any fraction of his, her or its interest in the Escrow Consideration.
(b) Certain Effective Time Holders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent engagement agreement Engagement Agreement (such Effective Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable for any act done or omitted hereunder hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as Securityholders’ Agent while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold the Securityholders’ Agent Group harmless against any loss, liability, claim, damage, fee, cost, feeloss, fine, judgment, amount paid in settlement liability or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) ), judgments, fines or amounts paid in settlement (collectively, the “Securityholders’ Agent Expenses”) incurred without gross negligence or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of his duties hereunderhereunder under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement. Such Securityholders’ Agent Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Consideration Fund otherwise distributable to the Effective Time Holders at the time of distribution, and third, directly from the Effective Time Holders. The Effective Time Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, Agreement the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 250,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Securityholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreementEngagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Effective Time Holders will not receive any interest on the Expense Fund and assign to the Securityholders’ Agent any such interest. Subject to Advisory Group approval, the Securityholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ Agent that the Expense Fund is no longer required to be withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (if any) to the Payment Agent and/or Acquiror, as applicable, for further distribution to the Effective Time Holders.
(d) The Securityholders’ Agent shall have reasonable access to information about Target and the Target Subsidiaries and the reasonable assistance of Target’s and the Target’s Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or any Target Subsidiary to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Securityholders’ Agent shall be entitled to: (i) rely upon the Payment 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 Effective Time Holder or other party.
Appears in 1 contract
Sources: Merger Agreement (INPHI Corp)