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 the exclusive agent, representative and true and lawful attorney-in-fact for and on behalf of the Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing, give and receive notices, instructions and communications 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 or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such claims pursuant to Section 1.6 or Article VIII; (viii) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions 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’ 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking any and all actions necessary or appropriate in the sole judgment of the Securityholders’ 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 , in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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 all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may resign at any time and may be 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 30 days’ prior written notice to Acquirer. 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. (b) Certain 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 (such Company 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 in connection with the acceptance or administration of the Securityholders’ Agent’s responsibilities hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ Agent Group against any and all losses, claims, damages, liabilities, fees, costs, 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 “Representative Losses”) arising out of or in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent 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 by the Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company 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 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 delivery of an assignment by any Company Securityholder of the whole or 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’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 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 Securityholders’ Agent (d) The Securityholders’ Agent shall be entitled to (i) rely upon the Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8, (ii) rely upon any signature believed by it to be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or party.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Castle Biosciences Inc)

Securityholders Agent. (a) By In the ~~adoption of~~ event that the ~~Merger~~Merger and the Subsidiary Merger are approved by the Former Securityholders, ~~and by receiving the benefits hereof, including any consideration payable hereunder~~effective upon such approvals, and without ~~any~~ further ~~action~~ act of any ~~of the Company Securityholders or the Company~~Former Securityholder, ~~each Company Securityholder~~ ▇▇ ▇▇ shall be ~~deemed to have approved Fortis Advisors LLC, a Delaware limited liability company,~~ appointed as ~~the Securityholders’ Agent as of Closing for all purposes in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement~~ agent and ~~the Securityholders’ Agent Engagement Agreement. The Securityholders’ Agent shall be the exclusive agent, representative and true and lawful~~ 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 ~~Company Securityholders to: (i) execute~~Former Securityholders, ~~as the Securityholders’ Agent~~including, ~~this Agreement~~without limitation, ~~the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing,~~ to give and receive ~~notices~~notices and communications, ~~instructions and communications permitted or required under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement, for and~~ to act on behalf of ~~any Company Securityholder,~~ the Former Securityholders with respect to ~~or from Acquirer relating to this Agreement,~~ the Escrow ~~Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement~~ Account and any other matters ~~contemplated by~~ arising under this ~~Agreement, the Escrow Agreement, the Exchange Agent~~ Agreement or the ~~Securityholders’ Agent Engagement Agreement (except~~ other Transaction Documents, to authorize delivery to Parent of any funds and property in its possession or in 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 possession of the ~~Adjusted Cash Consideration (and each~~ Escrow Agent in satisfaction of ~~the components thereof); (iv) update the calculations provided in the Spreadsheet and deliver or cause~~ claims by Parent, 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such ~~claims pursuant~~ deliveries, to ~~Section 1.6 or Article VIII; (viii) consent or~~ agree to, negotiate, enter ~~into, or, if applicable, contest, prosecute or defend,~~ 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~~ orders of courts and awards of courts, mediators and arbitrators with respect toto such suits, ~~such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto~~ claims or ~~to the Transactions by arbitration, settlement or otherwise~~proceedings, and to 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’ 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking any and all actions necessary or appropriate in the ~~sole~~ judgment of the Securityholders’ Agent ~~in connection with~~ for the 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 accomplishment of ~~any Person under any circumstance. 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 Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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, Former Securityholders until such time 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 9.1agency is terminated. ~~Each Company Securityholder and such Company Securityholder’s successors shall~~ Such agency may be ~~bound by all actions taken and documents executed~~ changed by the ~~Securityholders’ Agent under this Agreement~~Former Securityholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, ~~the Escrow Agreement~~however, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as that the Securityholders’ Agent may ~~resign at any time and may~~ not be removed ~~or replaced from time~~ unless holders of at least two-thirds interest in the Merger Consideration agree to ~~time, or if~~ such ~~Person resigns from his, her or its position as~~ removal and to the identity of the substituted Securityholders’ Agent~~, then a successor~~ . Any vacancy in the position of Securityholders’ Agent may be ~~appointed,~~ filled by approval of the ~~Company Securityholders collectively holding~~ recipients of 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 30 days’ prior written notice to Acquirer. 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 AgreementMerger 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 Former 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) ~~Certain Company Securityholders have entered into an engagement agreement (the “~~The Securityholders’ Agent ~~Engagement Agreement”)~~ shall not incur any liability with respect to any action taken or suffered by it or omitted hereunder as Securityholders’ Agent while acting in its capacity as Securityholders’ Agent. The Securityholders’ Agent may, in all questions arising hereunder, rely on the advice of counsel and other professionals and for anything done, omitted or suffered by the Securityholders’ Agent shall not be liable to ~~provide direction~~ 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 ~~in connection with~~ determined by it to be reasonably necessary to carry out the purposes of its ~~services under this Agreement~~obligations. The Former Securityholders, ~~the Escrow Agreement~~on a pro rata basis, ~~the Exchange Agent Agreement and~~ shall indemnify the Securityholders’ Agent ~~Engagement Agreement (such Company Securityholders~~and hold it harmless against any loss, ~~including their individual representatives, collectively hereinafter referred to as~~ liability or expense incurred on the ~~“Advisory Group”). Neither~~ part of the Securityholders’ Agent ~~nor~~ (unless arising out of its ~~members, managers, directors, officers, contractors, agents~~ gross negligence or willful misconduct) and ~~employees nor any member~~ arising out of ~~the Advisory Group (collectively, the “Securityholders’ Agent Group”), shall be liable to any Company Securityholder for any action~~ or ~~failure to act~~ in connection with the acceptance or administration of ~~the Securityholders’ Agent’s responsibilities hereunder,~~ its duties under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ Agent Group against any and all losses, claims, damages, liabilities, fees, costs, 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 “Representative Losses”) arising out of or in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent 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 by the Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company 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 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 delivery of an assignment by any Company Securityholder of the whole or 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’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 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 Securityholders’ Agent (d) The Securityholders’ Agent shall be entitled to satisfy any such loss, liability and expense from the proceeds of the Expense Reserve Amount, or if the amount of the loss, liability or expense exceeds the Expense Reserve Amount, the Escrow Amount received by the Securityholders’ Agent for distribution to the Former Securityholders on a pro rata basis. (c) The Securityholders’ Agent may use the Expense Reserve Amount to pay the expenses incurred by the Securityholders’ Agent under the authorization granted in Section 11.6(a) and to satisfy the indemnification obligations of the Former Securityholders to the Securityholders’ Agent pursuant to Section 11.6(b). However, the Expense Reserve Amount shall not serve as a cap on the Former Securityholders’ obligation to indemnify the 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) ~~rely upon~~ the ~~Spreadsheet delivered~~ resolution of all indemnification claims under Article XI hereof and the determination by the ~~Company to Acquirer prior~~ Securityholders’ Agent that such funds are no longer necessary in connection with indemnification claims that may be brought thereunder and (ii) the payment of the maximum amount recoverable by the Parent Indemnified Parties from the Former Securityholders, if any, shall be distributed to the ~~Closing~~ Former Securityholders on a pro rata basis. The Expense Reserve Amount shall not be available to any Parent Indemnified Party to satisfy any claims hereunder. (d) 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 ~~5.8~~11.1 of this Agreement, ~~(ii) rely upon any signature believed by it~~ the Securityholders’ Agent shall have reasonable access to ~~be genuine~~ information about the Company and ~~(iii) reasonably assume that a signatory has proper authorization to sign on behalf~~ Parent and the reasonable assistance of the ~~applicable~~ Surviving Company’s and Parent’s 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 the Surviving Company ~~Securityholder~~ or ~~party.~~Parent to anyone (except on a need to know basis to individuals who agree to treat such information

Appears in 1 contract

Sources: Merger Agreement (Martek Biosciences Corp)

Securityholders Agent. (a) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and by the consummation of the Merger or participating in the Merger and receiving the benefits ~~hereof~~thereof, including ~~any~~ the right to receive the consideration payable ~~hereunder, and without any further action of any of~~ in connection with the ~~Company Securityholders or the Company~~Merger, each Company Securityholder shall be deemed to ~~have approved Fortis Advisors LLC~~irrevocably agree, ~~a Delaware limited liability company,~~ constitute and appoint the Securityholders’ Agent (and by the execution of this Agreement as ~~the~~ Securityholders’ Agent as of ~~Closing~~ the date hereof, the Securityholders’ Agent hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact of each of the Company Securityholder and Indemnifying Parties as of the Effective Time, for all purposes in connection with this Agreement, the ~~Escrow Agreement, the Exchange Agent Agreement~~ Transaction Documents and the ~~Securityholders’ Agent Engagement Agreement. The Securityholders’ Agent shall be the exclusive agent~~transactions contemplated hereby and thereby, ~~representative~~ including in connection with claims for indemnification under ‎Article 8 and true and lawful attorney-in-fact for and on behalf of the Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing, give and receive notices, instructions and communications 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 or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such claims pursuant to Section 1.6 or Article VIII; (viii) consent or agree to, negotiate, and enter ~~into~~into and execute settlements, ~~or, if applicable, contest, prosecute or defend, settlements~~ adjustments and compromises of, and respond to or object to notices, demand arbitration and comply with ~~Orders~~ 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, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or~~ Merger Support Agreement and to this Agreement and to the ~~Transactions by arbitration, settlement or otherwise~~transactions contemplated hereby, and to take ~~or forego any or~~ all other actions ~~permitted or required of any Company Securityholder or deemed~~ that are either (i) necessary or appropriate in the ~~sole~~ judgment of ~~the~~ Securityholders’ Agent for the accomplishment of the foregoing (ii) specifically mandated or permitted by the terms of this Agreement or any Merger Support Agreement, (iii) or as may otherwise be needed in ~~connection with~~ furtherance of the Securityholders’ Agent’s ~~obligations, powers and authority hereunder,~~ obligations 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~~agreements ancillary hereto, ~~independent public accountants and other experts selected by it, solely at~~ including updating the ~~cost and expense of the Company Securityholders; (x) following the Closing, consent~~ Consideration Spreadsheet from time to time as may be required or ~~agree~~ necessary 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 give effect to the terms hereof. Such actions may include collecting from Company Securityholders ~~(other than with respect~~ and providing to the issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking any and all actions necessary or appropriate in the sole judgment of the Securityholders’ Agent Acquirer documents in connection with ~~the Securityholders’ Agent’s obligations, powers~~ discovery or other information requests pursuant to any legal process. The Acquirer 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 any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement Agreement. Acquirer, Merger Sub and their respective its 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~~8.10. ~~Each~~ By approving this Agreement, each Company Securityholder ~~and such Company Securityholder’s successors shall be bound by~~ agrees that all actions taken ~~and documents executed~~ by the Securityholders’ Agent under this ~~Agreement~~Agreement shall be binding upon such Company Securityholder and its successors, ~~the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement~~ 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 ~~all defenses which~~ is irrevocable. (b) The Securityholders’ Agent may be ~~available to any Company Securityholder to contest, negate or disaffirm the~~ removed by action of the ~~Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement~~ Indemnifying Parties that are ~~waived, and Acquirer and Merger Sub shall be~~ entitled to ~~rely exclusively on any action~~ receive a majority of the Merger Consideration. In the event of the resignation, removal, death, or ~~decision~~ 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. ~~The Person serving~~ 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 ~~may resign at any time~~ and ~~may be removed or replaced from time to time~~the Indemnifying Parties, 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 30 days’ prior written notice to Acquirer. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent will incur no liability of any kind with respect to any action 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. (b) Certain Company Securityholders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to omission by the Securityholders’ Agent in connection with its services ~~under~~ pursuant to this ~~Agreement, the Escrow Agreement, the Exchange Agent~~ Agreement and any agreements ancillary hereto, except in the Securityholders’ Agent Engagement Agreement (such Company 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 event of the Advisory Group (collectively, the “Securityholders’ Agent Group”), shall be liable to any Company Securityholder for any action or failure to act in connection with the acceptance or administration of liability directly resulting from the Securityholders’ Agent’s ~~responsibilities hereunder~~fraud, ~~under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement, unless and only to the extent such action or failure to act constitutes~~ gross negligence or willful misconduct. Solely as between the Securityholders’ Agent and the Indemnifying Parties, the Securityholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The ~~Company Securityholders~~ Indemnifying Parties shall indemnify, defend and hold harmless the Securityholders’ Agent ~~Group~~ from and against any and all losses, ~~claims~~liabilities, damages, ~~liabilities~~claims, penalties, fines, forfeitures, actions, fees, ~~costs,~~ 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 insurers)~~their staffs and all expense of document location, ~~judgments, fines or amounts paid in settlement~~ duplication and shipment) (collectively, ~~the~~ “~~Representative Losses~~Securityholders’ Agent Expenses”) arising out of or in connection with ~~this Agreement, the Escrow Agreement, the Exchange Agent Agreement or~~ the Securityholders’ ~~Agent Engagement Agreement~~Agent’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such ~~Representative Loss~~ Securityholders’ Agent Expense is suffered or incurred; provided, that in the event that any such ~~Representative Loss~~ Securityholders’ Agent Expense is finally adjudicated to have been directly caused by the ~~bad faith~~fraud, gross negligence or willful misconduct of the Securityholders’ Agent, the Securityholders’ Agent will reimburse the ~~Company Securityholders~~ Indemnifying Parties the amount of such indemnified ~~Representative Loss~~ Securityholders’ Agent Expense to the extent attributable to such ~~bad faith~~fraud, gross negligence or willful misconduct. ~~Representative Losses may be recovered by~~ In no event will the Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company 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 Company Securityholders acknowledge that the Securityholders’ Agent shall not be required to ~~expend or risk~~ advance its own funds on behalf of the Indemnifying Parties 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 actionsotherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations ~~of, or provisions limiting~~ of the ~~recourse against non-parties otherwise applicable to, the Company Securityholders~~ Indemnifying Parties set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholders’ Agent ~~hereunder~~under this section. The ~~powers~~foregoing indemnities will survive the Closing, ~~immunities and rights to indemnification granted to~~ the resignation or removal of the Securityholders’ Agent ~~Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive~~ or the ~~death, incompetence, bankruptcy or liquidation~~ termination 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 delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Adjustment Escrow Fund and/or the Indemnity Escrow Fundthis Agreement. (cd) ~~After the Closing, any~~ 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’s authority under this Section ~~9.1(a)~~ 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~~ ‎and shall be final, binding and conclusive upon each such Company Securityholder; and each ~~Acquirer~~ Indemnified ~~Party~~ 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 ~~Securityholder~~Securityholders. The Acquirer, Merger Sub, Merger Sub II, the Surviving Corporation, the Surviving Company and the ~~Surviving Corporation~~ Indemnified Persons 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 Securityholders’ Agent. (de) The Securityholders’ Agent ~~shall~~ 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 other Transaction Documents to which it is a party in accordance with the respective terms thereof has been duly authorized according to all necessary corporate action on the part of the Securityholders’ Agent. This Agreement and the other Transaction Documents to which it is a party, when executed and delivered, will be ~~entitled~~ duly executed and delivered by the Securityholders’ Agent and, assuming the due authorization, execution and delivery by the other parties hereto, constitute the legal, valid and binding obligation of the Securityholders’ Agent, enforceable against the Securityholders’ Agent in accordance with its terms, subject only to the effect, if any, of (i) ~~rely upon~~ applicable bankruptcy and other similar laws affecting the ~~Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8,~~ rights of creditors generally and (ii) ~~rely upon any signature believed by it to be genuine~~ rules of law governing specific performance, injunctive relief and ~~(iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or party~~other equitable remedies.

Appears in 1 contract

Sources: Merger Agreement (Gatsby Digital, 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, representative~~ agent and ~~true and lawful~~ attorney-in-fact for and on behalf of the ~~Company Securityholders to: (i) execute~~Effective Time Holders and shall have full power authority to represent, ~~as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing,~~ to give and receive ~~notices~~notices and communications, ~~instructions and communications permitted or required~~ to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this ~~Agreement, the Escrow Agreement, the Exchange Agent~~ Agreement ~~or the Securityholders’ Agent Engagement Agreement, for and on behalf of any Company Securityholder~~by Acquiror, to or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such ~~claims pursuant~~ releases, to ~~Section 1.6 or Article VIII; (viii) consent or~~ agree to, negotiate, enter ~~into, or, if applicable, contest, prosecute or defend,~~ into 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~~ to act on the resolution of any dispute relating hereto or to the Transactions 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 SecurityholdersEffective Time Holders’ 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 behalf with respect to the ~~issuance of the Merger Consideration)~~ matters set forth herein, in accordance with the terms ~~hereof~~ and provisions set forth herein, including giving and receiving all notices and communications to be given or ~~thereof~~ received with respect to the matters set forth in this Section 9 and ~~in the manner provided herein or therein; and (xi)~~ to take ~~or refrain from taking any and~~ all actions necessary or appropriate in the ~~sole~~ judgment of the Securityholders’ Agent ~~in connection with~~ for the ~~Securityholders’ Agent’s obligations, powers~~ interpretation of this Agreement and ~~authority hereunder, under~~ accomplishment of 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 any Person under any circumstanceforegoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the ~~Company Securityholders~~Effective Time Holders, except as expressly provided ~~herein,~~ herein and in the Escrow ~~Agreement, in the Exchange Agent~~ Agreement ~~or in~~ and the Securityholders’ Agent ~~Engagement Agreement. Acquirer~~engagement agreement, ~~Merger Sub~~ and ~~their respective Affiliates (including after the Effective Time~~for purposes of clarity, ~~the Surviving Corporation) shall be entitled to rely on the appointment~~ there are no obligations 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~~in any ancillary agreement, 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 Agreementschedule, ~~the Escrow Agreement, the Exchange Agent Agreement~~ exhibit or the Securityholders’ Agent Engagement Agreement as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ AgentTarget Disclosure Schedule. The ~~Person serving as the~~ Securityholders’ Agent may resign at any time and such agency may be ~~removed or replaced~~ changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration 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 30 ten (10) days’ prior written notice to Acquirer. 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 AgreementAcquiror. 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 ~~Company Securityholders~~ 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, the Exchange Agent~~ Agreement and the Securityholders’ Agent ~~Engagement Agreement~~ engagement agreement (such ~~Company Securityholders~~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 ~~to any Company Securityholder~~ for any ~~action~~ act done or ~~failure to act in connection with the acceptance or administration of the Securityholders’ Agent’s responsibilities hereunder, under the Escrow Agreement or under the~~ omitted hereunder as Securityholders’ Agent ~~Engagement Agreement, unless~~ while acting in good faith and ~~only~~ in the exercise of reasonable judgment and any act done or omitted pursuant to the ~~extent~~ advice of counsel shall be conclusive evidence of such ~~action or failure to act constitutes gross negligence or willful misconduct~~good faith. The ~~Company Securityholders~~ Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold ~~harmless~~ the Securityholders’ Agent Group harmless against any ~~and all losses~~loss, ~~claims~~liability, ~~damages~~claim, ~~liabilities~~damage, ~~fees~~cost, ~~costs~~fee, ~~expenses~~ 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~~), judgments, fines or amounts paid in settlement~~ ) (collectively, the “~~Representative Losses~~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 ~~this Agreement,~~ the ~~Escrow Agreement, the Exchange Agent Agreement~~ acceptance or ~~the~~ administration of his duties hereunder. Such Securityholders’ Agent 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 Expenses may be recovered ~~by the Securityholders’ Agent~~ first, from ~~(i) the funds in~~ the Expense Fund, ~~(ii)~~ second, from any ~~other funds that become payable to~~ distribution of the ~~Company Securityholders under this Agreement at such time as such amounts would~~ Escrow Consideration otherwise be distributable to the ~~Company Securityholders~~Effective Time Holders at the time of distribution, and ~~(iii)~~ third, directly from the Company 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 incurredEffective Time Holders. The ~~Company Securityholders~~ 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, 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~~ shall survive the resignation or removal of 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 delivery of an assignment by any Company Securityholder member of the ~~whole or~~ Advisory Group and the Closing and/or any ~~fraction~~ termination of ~~his, her or its interest in~~ this Agreement and the ~~Adjustment~~ Escrow ~~Fund and/or the Indemnity Escrow Fund~~Agreement. (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’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 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 Securityholders’ Agent (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). (d) Upon the Closing, Acquiror shall wire to the Securityholders’ Agent $1,000,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be ~~entitled to~~ held by the Securityholders’ Agent in a segregated client account and shall be used (i) ~~rely upon~~ for the ~~Spreadsheet delivered by~~ purposes of paying directly or reimbursing the ~~Company to Acquirer prior to the Closing~~ Securityholders’ Agent for any Securityholders’ Agent Expenses incurred pursuant to ~~Section 5.8~~this Agreement, the Escrow Agreement or any Securityholders’ Agent letter agreement, or (ii) ~~rely upon~~ as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholders’ Agent is not providing any ~~signature believed~~ 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 it the Securityholders’ Agent that the Expense Fund is no longer required to be ~~genuine and~~ withheld, the Securityholders’ Agent shall distribute the remaining Expense Fund (~~iii~~if any) ~~reasonably assume that a signatory has proper authorization~~ to ~~sign on behalf of~~ the ~~applicable Company Securityholder or party~~Payment Agent for further distribution to the Effective Time Holders.

Appears in 1 contract

Sources: Merger Agreement (INPHI Corp)

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 ~~the~~ constituted and appointed as exclusive ~~agent, representative~~ agent and ~~true and lawful~~ attorney-in-fact for and on behalf of the ~~Company Securityholders to: (i) execute~~Effective Time Holders and shall have full power authority to represent, ~~as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing,~~ to give and receive ~~notices~~notices and communications, ~~instructions and communications permitted or required~~ to authorize the release of any portion of the Escrow Consideration to Acquiror in satisfaction of claims under this ~~Agreement, the Escrow Agreement, the Exchange Agent~~ Agreement ~~or the Securityholders’ Agent Engagement Agreement, for and on behalf of any Company Securityholder~~by Acquiror, to or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such ~~claims pursuant~~ releases, to ~~Section 1.6 or Article VIII; (viii) consent or~~ agree to, negotiate, enter ~~into, or, if applicable, contest, prosecute or defend,~~ into 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~~to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, ~~take any actions~~ in ~~connection~~ the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, in accordance with the ~~resolution of any dispute relating hereto~~ 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 ~~Transactions by arbitration, settlement or otherwise,~~ matters set forth in this Section 9 and to 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’ Agent ~~in connection with~~ for the ~~Securityholders’ Agent’s obligations, powers and authority hereunder, under the Escrow~~ interpretation of this Agreement, the ~~Exchange Agent~~ Escrow Agreement ~~or under~~ and the Securityholders’ Agent Engagement Agreement and ~~all~~ accomplishment 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking any and all actions necessary or appropriate in the sole judgment of the Securityholders’ 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 , in each case without having to seek or obtain the consent of any Person under any circumstanceforegoing. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the ~~Company Securityholders~~Effective Time Holders, except as expressly provided herein, in the Escrow ~~Agreement, in the Exchange Agent~~ Agreement or and in the Securityholders’ Agent Engagement Agreement~~. Acquirer~~, ~~Merger Sub~~ and ~~their respective Affiliates (including after the Effective Time~~for purposes of clarity, ~~the Surviving Corporation) shall be entitled to rely on the appointment~~ there are no obligations 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~~in any ancillary agreement, 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 Agreementschedule, ~~the Escrow Agreement, the Exchange Agent Agreement~~ exhibit or the Securityholders’ Agent Engagement Agreement as if expressly confirmed and ratified in writing by such Company Securityholder, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ AgentTarget Disclosure Schedule. The ~~Person serving as the~~ Securityholders’ Agent may resign at any time and such agency may be ~~removed or replaced~~ changed by the vote of Effective Time Holders representing a majority in interest of the Escrow Consideration 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 30 ten (10) days’ prior written notice to ~~Acquirer~~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, the Escrow Agreement, the Exchange Agent~~ Agreement and the ~~Securityholders’ Agent Engagement~~ 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. (b) Certain ~~Company Securityholders~~ 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, the Exchange Agent~~ Agreement and the Securityholders’ Agent Engagement Agreement (such ~~Company Securityholders~~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 ~~to any Company Securityholder~~ for any ~~action~~ act done or ~~failure to act in connection with the acceptance or administration of the Securityholders’ Agent’s responsibilities~~ omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement ~~Agreement, unless~~ Agreement as Securityholders’ Agent while acting in good faith and ~~only~~ in the exercise of reasonable judgment and any act done or omitted pursuant to the ~~extent~~ advice of counsel shall be conclusive evidence of such ~~action or failure to act constitutes gross negligence or willful misconduct~~good faith. The ~~Company Securityholders~~ Effective Time Holders shall severally, in accordance with their Pro Rata Portion, indemnify, defend and hold ~~harmless~~ the Securityholders’ Agent Group harmless against any ~~and all losses~~claim, ~~claims~~damage, ~~damages~~fee, ~~liabilities~~cost, ~~fees~~loss, ~~costs, expenses~~ 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 “~~Representative Losses~~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 ~~this Agreement,~~ the acceptance or administration of his duties hereunder under the Escrow ~~Agreement, the Exchange Agent~~ Agreement or under the Securityholders’ Agent 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 . Such 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 Expenses may be recovered ~~by the Securityholders’ Agent~~ first, from ~~(i) the funds in~~ the Expense Fund, ~~(ii)~~ second, from any ~~other funds that become payable to~~ distribution of the ~~Company Securityholders under this Agreement at such time as such amounts would~~ Escrow Fund otherwise be distributable to the ~~Company Securityholders~~Effective Time Holders at the time of distribution, and ~~(iii)~~ third, directly from the Company 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 incurredEffective Time Holders. The ~~Company Securityholders~~ 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, 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~~ . (c) Upon the ~~contrary~~Closing, 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 Acquiror shall wire to the Securityholders’ Agent ~~hereunder~~$250,000 (the “Expense Fund Amount”). The ~~powers~~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, ~~immunities~~ the Escrow Agreement or any Securityholders’ Agent Engagement 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 ~~rights to indemnification granted~~ 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 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 delivery of an assignment by any Company Securityholder of the whole or 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 ofapproval, the Securityholders’ Agent ~~that is within~~ may contribute funds to the ~~scope of~~ Expense Fund from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined by the Securityholders’ ~~Agent’s authority under Section 9.1(a) shall constitute a notice or communication~~ Agent that the Expense Fund is no longer required to ~~or by~~be withheld, 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 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 Securityholders’ ~~Agent~~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 to: (i) rely upon the ~~Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8~~Payment Schedule, (ii) rely upon any signature believed by it to be ~~genuine~~ genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable ~~Company Securityholder~~ Effective Time Holder or other party.

Appears in 1 contract

Sources: Merger Agreement (INPHI Corp)

Securityholders Agent. (a) By virtue of the adoption of ~~the Merger, and~~ this Agreement by ~~receiving the benefits hereof, including any consideration payable hereunder, and without any further action of any of~~ the Company ~~Securityholders or~~ Stockholders, the ~~Company~~Effective Time Holders irrevocably nominate, ~~each Company Securityholder shall be deemed to have approved Fortis Advisors LLC~~constitute and appoint Blueprint Ventures Management I, ~~a Delaware limited liability company,~~ LLC 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 the exclusive agent, representative agent and true and lawful ~~attorney-in-fact for~~ exclusive proxy and on behalf of the Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing, give and receive notices, instructions and communications 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 or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such claims pursuant to Section 1.6 or Article VIII; (viii) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions 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’ 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking any and all actions necessary or appropriate in the sole judgment of the Securityholders’ 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 , in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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~~ the Effective Time Holders (the “Securityholders’ Agent”), with full power of substitution and ~~as having~~ resubstitution, to act solely and exclusively in the ~~duties~~name, ~~power~~ place and ~~authority provided~~ stead of the Effective Time Holders for ~~in this Section 9.1. Each Company Securityholder~~ purposes of executing any documents and ~~such Company Securityholder’s successors shall be bound by all~~ taking any actions ~~taken and documents executed by~~ that the Securityholders’ Agent ~~under~~ 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 ~~Escrow Agreement,~~ power to pay or compromise any indemnity claim on behalf of the ~~Exchange Agent Agreement~~ 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 ~~Engagement Agreement as if expressly confirmed and ratified in writing by such Company Securityholder~~deems necessary or appropriate; (iv) to receive funds (including all or any portion of the Final Merger Consideration), make payments of funds, and ~~all defenses which may be available~~ give receipts for funds on behalf of any Effective Time Holder; (v) to ~~any Company Securityholder to contest, negate or disaffirm~~ receive funds for the ~~action~~ payment of expenses of the ~~Securityholder’s Agent taken~~ Effective Time Holders and apply such funds in ~~good faith~~ payment for such expenses; (vi) to direct any payments due under ~~this Agreement,~~ the ~~Escrow Agreement,~~ Transaction Bonus Plan; (vii) to do or refrain from doing any further act or deed on behalf of the ~~Exchange Agent Agreement or~~ Effective Time Holders that the Securityholders’ Agent ~~Engagement~~ deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement ~~are waived~~as fully and completely as the Effective Time Holders could do if personally present; (viii) to communicate to, and ~~Acquirer~~ receive all communications and notices from, Parent, Merger Sub ~~shall be entitled~~ and the Company; (ix) to ~~rely exclusively on~~ receive service of process in connection with any ~~action~~ claims under this Agreement; (x) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or ~~decision~~ appropriate in the judgment of the Securityholders’ Agent~~. The Person serving as the Securityholders’ Agent may resign at~~ ; 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 ~~time~~ and ~~may be removed or replaced from time~~ all things and to ~~time, or if such Person resigns from his, her or its position as~~ take any and all actions that the Securityholders’ Agent, ~~then a successor~~ in its sole discretion, may ~~be appointed~~consider necessary, proper or convenient in connection with or to carry out the transactions contemplated 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 30 days’ prior written notice to Acquirer. The immunities this Agreement 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. Blueprint Ventures Management I, ~~the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement. No bond shall be required of~~ LLC hereby accepts its appointment as the Securityholders’ Agent. (b) ~~Certain Company Securityholders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with~~ The appointment of the Securityholders’ Agent shall be deemed coupled with an interest and shall be irrevocable, and Parent, Merger Sub, the Company and any other Person, including the Escrow Agent and the Paying Agent, may conclusively and absolutely rely, without inquiry, upon any instruction, decision or action of the Securityholders’ Agent in all matters referred to ~~provide direction~~ 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 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 the 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 must be signed by the Securityholders’ Agent. The Securityholders’ Agent shall not be responsible to any Effective Time Holder for any damages which the Effective Time Holders 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 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~~duties as Securityholders’ Agent shall be borne and paid by the Effective Time holders. The Securityholders’ Agent shall not be liable for any act done or omitted hereunder as Securityholders’ Agent while acting in good faith, and any act done or omitted to be done pursuant to the ~~Escrow Agreement~~advice of counsel or any other expert, ~~the Exchange Agent Agreement and~~ consultant or advisor retained by the Securityholders’ Agent ~~Engagement~~ shall be conclusive evidence of such good faith. By virtue of the adoption of this Agreement by the Company Stockholders, the Effective Time Holders hereby agree (~~such Company Securityholders, including their individual representatives, collectively hereinafter referred~~ A) to ~~as the “Advisory Group”). Neither~~ reimburse the Securityholders’ Agent ~~nor its members, managers, directors, officers, contractors, agents~~ for all out-of-pocket costs and ~~employees nor any member of~~ expenses incurred by the ~~Advisory Group (collectively, the “~~Securityholders’ Agent ~~Group”)~~under this Agreement or the other Transactional Agreements to which the Securityholders’ Agent is a party, ~~shall be liable to any Company Securityholder~~ including fees for any ~~action~~ attorneys or ~~failure~~ other representative it may employ, and (B) to ~~act in connection with the acceptance or administration of~~ severally indemnify and hold harmless and defend the Securityholders’ Agent~~’s responsibilities hereunder~~, ~~under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement, unless~~ its agents and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ Agent Group assigns against ~~any and~~ all ~~losses, claims, damages, liabilities, fees, costs, expenses~~ Liabilities (including ~~fees, disbursements and costs of counsel~~ legal and other ~~skilled professionals~~ professional fees and ~~in connection with seeking recovery from insurers)~~expenses, ~~judgments, fines~~ and litigation costs) and actions of any kind (whether known or ~~amounts paid in settlement (collectively, the “Representative Losses”~~unknown) arising out of or in connection with (x) the Securityholders’ Agent’s omissions to act, or actions taken, resulting from, arising out of, or incurred in connection with, or otherwise with respect to, this ~~Agreement, the Escrow Agreement, the Exchange Agent~~ Agreement or the other Transactional Agreements to which the Securityholders’ Agent ~~Engagement Agreement,~~ is a party (in ~~each case~~ its capacity 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), or (y) services taken with respect to this Agreement or the other Transactional Agreements to which 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 by the is a party (in its capacity as Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company 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 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 ofAgent), or ~~provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended~~ reasonably believed 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 delivery of an assignment by any Company Securityholder of the whole or 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’s ~~authority under~~ authority; provided, however, that the maximum aggregate Damages payable by each Effective Time Holder pursuant to this Section ~~9.1(a~~10.1 shall be such Effective Time Holder’s Pro Rata Share of the Merger Consideration. (c) Notwithstanding anything to the contrary contained in any of the Transactional Agreements: (i) Parent and Merger Sub shall ~~constitute a~~ be entitled to deal exclusively with the Securityholders’ Agent on all matters relating to the respective Transactional Agreements and the respective Transactions (including all matters relating to any notice to, or ~~communication~~ any Consent to be given or action to be taken 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 any Effective Time Holder); and (ii) each ~~such Company Securityholder; and each Acquirer Indemnified Party~~ Indemnitee shall be entitled to rely ~~exclusively upon~~ conclusively (without further evidence of any ~~such notice, communication, decision, action, failure~~ kind whatsoever) on any document executed or purported to ~~act within a designated period~~ be executed on behalf 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~~ Effective Time Holder 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, and on any other action taken or purported to be taken on behalf of any Effective Time Holder by the Securityholders’ Agent, as fully binding upon such Effective Time Holder. (d) 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 (i.pdf) ~~rely upon the Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8, (ii) rely upon any signature~~ or other document that is believed by it to be genuine and to have been telexed, telegraphed, faxed, emailed or cabled by a Effective Time Holder or to have been signed and presented by a Effective Time Holder. (~~iii~~e) ~~reasonably assume that~~ If the Securityholders’ Agent shall die, become disabled or otherwise be unable to fulfill its responsibilities hereunder, the Effective Time Holders shall, within ten (10) days after such death or disability, appoint a ~~signatory has proper authorization~~ successor to ~~sign on behalf~~ the Securityholders’ Agent and immediately thereafter notify Parent of the ~~applicable~~ identity of such successor. Any such successor shall succeed the Securityholders’ Agent as Securityholders’ Agent hereunder. If for any reason there is no Securityholders’ Agent at any time, all references herein to the Securityholders’ Agent shall be deemed to refer to the Effective Time Holders. (f) The parties agree that the fact that ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may have represented the Company ~~Securityholder or party~~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

Sources: Merger Agreement (Netscout Systems 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 ~~the exclusive agent, representative~~ constituted and ~~true~~ appointed as agent and ~~lawful~~ attorney-in-fact for and on behalf of the ~~Company~~ Securityholders ~~to: (i) execute~~and shall have full power authority to represent, ~~as the Securityholders’ Agent~~to give and receive notices and communications, ~~this Agreement,~~ to authorize the Escrow ~~Agreement~~Agent to release any portion of the Escrow Fund to Acquiror in satisfaction of claims by Acquiror, ~~the Exchange Agent Agreement and~~ to release any portion of the Securityholders’ Agent Engagement Agreement; (ii) following the Closing, give and receive notices, instructions and communications permitted or required under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or Holdback Amount to the Securityholders~~’ Agent Engagement Agreement~~, ~~for and on behalf of any Company Securityholder~~as applicable, to or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such ~~claims pursuant~~ deliveries, to ~~Section 1.6 or Article VIII; (viii) consent or~~ agree to, negotiate, enter ~~into, or, if applicable, contest, prosecute or defend,~~ into 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 the Transactions 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 act on the Securityholders’ 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 behalf with respect to the ~~issuance of the Merger Consideration)~~ matters set forth herein, in accordance with the terms ~~hereof~~ and provisions set forth herein, including giving and receiving all notices and communications to be given or ~~thereof~~ received with respect to the matters set forth in Section 2.13 and ~~in the manner provided herein or therein; and (xi)~~ to take ~~or refrain from taking any and~~ all actions necessary or appropriate in the ~~sole~~ judgment of the Securityholders’ Agent for the interpretation of this Agreement and accomplishment of the foregoing. Such agency may be changed by the holders of a majority in ~~connection with the Securityholders’ Agent’s obligations, powers and authority hereunder, under~~ interest of 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 any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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 all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may resign at any time and may be removed or replaced Fund 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 30 ten (10) days’ prior written notice to Acquirer. 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 AgreementAcquiror. 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 Securityholders. (b) ~~Certain Company Securityholders have entered into an engagement agreement (the “~~The Securityholders’ Agent ~~Engagement Agreement”) with~~ 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 Securityholders shall severally indemnify and hold the Securityholders’ Agent ~~to provide direction to~~ harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholders’ Agent ~~in connection with its services under this Agreement, the Escrow Agreement, the Exchange Agent Agreement~~ and the Securityholders’ Agent Engagement Agreement (such Company 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 arising out of ~~the Advisory Group (collectively, the “Securityholders’ Agent Group”), shall be liable to any Company Securityholder for any action~~ or ~~failure to act~~ in connection with the acceptance or administration of ~~the Securityholders’ Agent’s responsibilities~~ his, her or its duties hereunder~~, under the Escrow Agreement or under the~~ . (c) The Securityholders’ Agent ~~Engagement Agreement~~shall have reasonable access to information about Target, ~~unless~~ Target Subsidiaries and ~~only to~~ Target Related Businesses and the ~~extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Securityholders shall indemnify~~reasonable assistance of Target’s and the Target Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, defend and hold harmless the Securityholders’ Agent Group against any and all losses, claims, damages, liabilities, fees, costs, 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 “Representative Losses”) arising out of or in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent 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 by the Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company 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 Company Securityholders acknowledge provided that the Securityholders’ Agent shall treat confidentially and not ~~be required~~ disclose any nonpublic information from or about Target, any Target Subsidiary or any Target Related Business 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~~ anyone (except on a need to ~~this Agreement, the Escrow Agreement, the Exchange Agent Agreement,~~ know basis to individuals who agree to treat such information confidentially). (d) Acquiror acknowledges that the Securityholders’ Agent ~~Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the~~ may have a conflict of interest with respect to its duties as Securityholders’ ~~Agent shall not be required to take any action unless~~ Agent, and in such regard 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 delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest informed Acquiror that it will act 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 best interests of the Securityholders’ 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 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 Securityholders’ Agent (d) The Securityholders’ Agent shall be entitled to (i) rely upon the Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8, (ii) rely upon any signature believed by it to be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or party.

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 ~~the exclusive agent~~constituted and appointed as representative, ~~representative~~ agent and ~~true and lawful~~ attorney-in-fact for and on behalf of the ~~Company Securityholders to: (i) execute,~~ Effective Time Holders as of the ~~Securityholders’ Agent,~~ Closing for all purposes in connection with this ~~Agreement, the Escrow Agreement, the Exchange Agent~~ Agreement and ~~the Securityholders’ Agent Engagement Agreement; (ii) following the Closing~~any agreement ancillary hereto and shall have full power and authority to represent, to give and receive ~~notices~~notices and communications, ~~instructions and communications permitted or required under this Agreement,~~ to authorize the Escrow ~~Agreement,~~ Agent to release any portion of the ~~Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement, for and on behalf~~ Escrow Amount to Acquiror in satisfaction of ~~any Company Securityholder~~claims by Acquiror, to or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such ~~claims pursuant~~ deliveries, to ~~Section 1.6 or Article VIII; (viii) consent or~~ agree to, negotiate, enter ~~into, or, if applicable, contest, prosecute or defend,~~ into 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~~to act on the Effective Time Holders’ behalf with respect to the matters set forth herein, ~~take any actions~~ in ~~connection~~ accordance with the ~~resolution of any dispute relating hereto~~ terms and provisions set forth herein, including giving and receiving all notices and communications to be given or received with respect to the ~~Transactions by arbitration, settlement or otherwise,~~ matters set forth in Section 2.12 and Section 9 and to 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’ Agent for the interpretation of this Agreement and accomplishment of the foregoing. Such agency may be changed by the holders of a majority in interest of the Escrow Amount from time to time upon not less than ten (10) days’ prior written notice to Acquiror. The Securityholders’ Agent may resign at any time. 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. (b) The Securityholders’ Agent will incur no liability of any kind with respect to any action or omission by the Securityholders’ 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~~ services pursuant to this Agreement and ~~all of the other terms~~any agreements ancillary hereto, 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and except in the ~~manner provided herein or therein; and (xi) take or refrain~~ event of liability directly resulting from ~~taking any and all actions necessary or appropriate in the sole judgment of the Securityholders’ 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 , in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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 all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may resign at any time and may be 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 30 days’ prior written notice to Acquirer. 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. (b) Certain 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 (such Company 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 in connection with the acceptance or administration of the Securityholders’ Agent’s responsibilities hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The ~~Company Securityholders~~ Securityholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Effective Time Holders severally (and not jointly) based on such Effective Time Holder’s Pro Rata Portion will indemnify, defend and hold harmless the Securityholders’ Agent ~~Group~~ from and against any and all losses, ~~claims~~liabilities, damages, ~~liabilities~~claims, penalties, fines, forfeitures, actions, fees, ~~costs,~~ 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 insurers)~~their staffs and all expense of document location, ~~judgments, fines or amounts paid in settlement~~ duplication and shipment) (collectively, ~~the~~ “Representative Losses”) arising out of or in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent 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~~ ’s execution and performance of this Agreement and any agreements (c) The Securityholders’ Agent ~~will reimburse~~ shall have reasonable access to information about Company and the Company ~~Securityholders~~ Subsidiaries and the ~~amount~~ reasonable assistance of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to Company’s and the Company ~~Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders~~Subsidiaries’ officers and employees for purposes of performing its duties and exercising its rights hereunder, and (iii) directly from the Company 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 Company Securityholders acknowledge provided that the Securityholders’ Agent shall treat confidentially and not ~~be required~~ disclose any nonpublic information from or about Company or any Company Subsidiary to ~~expend~~ anyone (except on a need to know basis to individuals who agree to treat such information confidentially). (d) A decision, act, consent or ~~risk its own funds or otherwise incur any financial liability in the exercise or performance~~ instruction 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~~ constitute a decision of all Effective Time Holders for whom the Merger Consideration otherwise payable to ~~take any action unless~~ them is released to Acquiror from the ~~Securityholders’ Agent has been provided~~ Escrow Account 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 respect 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~~ matters 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 delivery of an assignment by any Company Securityholder of the whole or 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’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 herein and shall be final, binding and conclusive upon each ~~such Company Securityholder;~~ Effective Time Holder, and ~~each Acquirer Indemnified Party shall be entitled to~~ Acquiror may rely ~~exclusively~~ upon any ~~such notice, communication,~~ decision, ~~action~~act, ~~failure to act within a designated period of time, agreement, consent, settlement, resolution~~ consent or instruction of the Securityholders’ Agent as being ~~a notice or communication to or by, or a~~ the decision, ~~action~~act, ~~failure to act within a designated period of time, agreement, consent, settlement, resolution~~ consent or instruction ~~of,~~ of each and every ~~such Company Securityholder~~Effective Time Holder. ~~Acquirer, Merger Sub and the Surviving Corporation are~~ Acquiror is hereby relieved from any ~~Liability~~ liability to any Person for any acts done by them in accordance with such ~~notice, communication,~~ decision, ~~action~~act, ~~failure to act within a designated period of time, agreement, consent, settlement, resolution~~ consent or instruction of the Securityholders’ Agent (d) The Securityholders’ Agent shall be entitled to (i) rely upon the Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8, (ii) rely upon any signature believed by it to be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or party.

Appears in 1 contract

Sources: Merger Agreement (Qualcomm Inc/De)

Securityholders Agent. (a) ~~By the adoption of the Merger~~Timeline Venture Management, 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~~ California 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 ~~the exclusive agent, representative~~ constituted and ~~true and lawful attorney-in-fact~~ appointed as agent ("SECURITYHOLDERS' AGENT") for and on behalf of the Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing, Stockholders to give and receive ~~notices~~notices and communications, ~~instructions~~ to authorize payment to Parent and ~~communications permitted or required under this Agreement~~Surviving Corporation pursuant to Section 8 in satisfaction of Indemnification Claims, ~~the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement, for~~ to object to such deliveries and to make claims on behalf of ~~any~~ the Company Securityholder, to or from Acquirer relating to this Agreement, the 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) Stockholders pursuant to Section ~~1.6~~8, ~~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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such claims pursuant to Section 1.6 or Article VIII; (viii) consent or agree to, negotiate, enter ~~into, or, if applicable, contest, prosecute or defend,~~ into settlements and compromises of, and demand arbitration and comply with ~~Orders~~ orders of courts and awards of arbitrators with respect toto Indemnification Claims, ~~such claims,~~ to resolve any ~~such claims,~~ Indemnification Claims and to take any actions in connection with the resolution of any dispute relating hereto or to the Transactions 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’ 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking any and all actions necessary or appropriate in the ~~sole~~ judgment of the Securityholders’ ' Agent ~~in connection with~~ for the 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 accomplishment of ~~any Person under any circumstance. Notwithstanding~~ the foregoing, . Such agency may be changed by the ~~Securityholders’ Agent shall have no obligation to act on behalf~~ holders of a majority in interest of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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 SecurityholderConvertible Promissory Notes, and ~~all defenses which may be available to any Company Securityholder to contest~~the shares issuable upon conversion thereof, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may resign at any time and may be 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 30 10 days’ ' prior written notice to Acquirer. 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 AgreementParent. 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 Company Stockholders. (b) ~~Certain~~ The Securityholders' Agent 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 Company ~~Securityholders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with~~ Stockholders shall severally indemnify the Securityholders’ ' Agent ~~to provide direction to~~ and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholders’ ' Agent ~~in connection with its services under this Agreement, the Escrow Agreement, the Exchange Agent Agreement~~ and the Securityholders’ Agent Engagement Agreement (such Company 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 arising out of ~~the Advisory Group (collectively, the “Securityholders’ Agent Group”), shall be liable to any Company Securityholder for any action~~ or ~~failure to act~~ in connection with the acceptance or administration of ~~the Securityholders’ Agent’s responsibilities~~ his duties hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ Agent Group against any and all losses, claims, damages, liabilities, fees, costs, 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 “Representative Losses”) arising out of or in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent 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 by the Securityholders’ Agent from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company 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 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 delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Adjustment Escrow Fund and/or the Indemnity Escrow Fund. (c) ~~After~~ The Securityholders' Agent shall have reasonable access to information about Company and the ~~Closing~~reasonable assistance of Company's officers and employees for purposes of performing his duties and exercising his rights hereunder, ~~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,~~ provided that the Securityholders’ Agent that is within the scope of the Securityholders’ 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 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 Securityholders’ Agent (d) The Securityholders’ ' Agent shall ~~be entitled to (i) rely upon the Spreadsheet delivered by the~~ treat confidentially and not disclose any nonpublic information from or about Company to ~~Acquirer prior~~ anyone (except on a need to ~~the Closing pursuant~~ know basis to ~~Section 5.8, (ii) rely upon any signature believed by it~~ individuals who agree to ~~be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or party~~treat such information confidentially).

Appears in 1 contract

Sources: Merger Agreement (Nexprise Inc)

Securityholders Agent. (a) 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 by execution of a Stockholder Joinder and Release Agreement and/or Optionholder Release Agreement, or participating in the Merger and receiving the benefits ~~hereof~~thereof, including ~~any~~ the right to receive the consideration payable ~~hereunder, and without any further action of any of~~ in connection with the ~~Company Securityholders or the Company~~Merger, each ~~Company Securityholder~~ Indemnifying Person shall be deemed to have approved ~~Fortis Advisors LLC~~the designation of, ~~a Delaware limited liability company~~and hereby designates, Shareholder Representative Services LLC as the Securityholders’ ~~Agent~~ Agent, to act as the representative, exclusive agent and attorney-in-fact of ~~Closing~~ the Indemnifying Persons for all purposes in connection with ~~this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement.~~ this (b) The Securityholders’ Agent shall not be ~~the exclusive agent, representative and true and lawful attorney-in-fact~~ liable to any Indemnifying Person for and on behalf of the Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement, the Escrow Agreement, the Exchange Agent Agreement and the Securityholders’ Agent Engagement Agreement; (ii) following the Closing, give and receive notices, instructions and communications permitted any act done 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 or from Acquirer relating to this Agreement, the 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 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 Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims); (vii) object to such claims pursuant to Section 1.6 or Article VIII; (viii) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions 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’ Agent omitted in connection with the Securityholders’ Agent’s ~~obligations~~services pursuant to this Agreement and any agreements ancillary hereto while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), ~~powers~~ except in the event of liability directly resulting from the Securityholders’ Agent’s gross negligence, willful misconduct or bad faith. The Securityholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Persons shall severally and ~~authority hereunder, under the Escrow Agreement, the Exchange Agent Agreement or under~~ not jointly and in accordance with their respective Pro Rata Share indemnify 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~~ hold the Securityholders’ Agent ~~Engagement Agreement; (ix) consult with legal counsel, independent public accountants~~ harmless from 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 issuance of the Merger Consideration) in accordance with the terms hereof or thereof and in the manner provided herein or therein; and (xi) take or refrain from taking against any and all ~~actions necessary~~ losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable and documented fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) arising out of or ~~appropriate in the sole judgment of the Securityholders’ 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 , in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement 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 all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholder’s Agent taken in good faith under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement are waived, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may resign at any time and may be 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 30 days’ prior written notice to Acquirer. 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. (b) Certain 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 (such Company 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 in connection with the acceptance or administration of ~~the Securityholders’ Agent’s responsibilities hereunder, under the Escrow~~ this Agreement ~~or under the Securityholders’ Agent Engagement Agreement, unless~~ and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ Agent Group against any and all losses, claims, damages, liabilities, fees, costs, 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 agreements ancillary hereto (collectively, ~~the~~ “~~Representative~~ Agent Losses”~~) arising out of or in connection with this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement~~), in each case as such ~~Representative~~ Agent Loss is suffered or incurred; provided, that in the event that any such ~~Representative~~ Agent Loss is finally adjudicated to have been directly caused by the ~~bad faith~~gross negligence, ~~gross negligence or~~ willful misconduct or bad faith of the Securityholders’ Agent, the Securityholders’ Agent will reimburse the ~~Company Securityholders~~ Indemnifying Persons the amount of such indemnified ~~Representative~~ Agent Loss to the extent attributable to such ~~bad faith,~~ gross negligence or willful misconduct~~. Representative Losses may be recovered by~~ . (c) If not paid directly to the Securityholders’ Agent ~~from~~ by the Indemnifying Persons, the Agent Losses shall be satisfied (i) ~~the funds in~~ from the Expense ~~Fund,~~ Fund Amount and (ii) ~~any other funds that become payable to~~ the ~~Company Securityholders under this Agreement~~ Holdback Fund at such time as ~~such~~ the remaining amounts would otherwise be distributable to the ~~Company Securityholders,~~ Indemnifying Persons and (iii) ~~directly~~ to the extent the amount of the Agent Losses exceeds amounts available to the Securityholders’ Agent under (i), from ~~the Company Securityholders~~each Indemnifying Person, severally and not jointly and in proportion to its Pro Rata Share; provided, that while this section allows the Securityholders’ Agent ~~may~~ to be paid from the ~~aforementioned sources of funds~~Expense Fund Amount and the Holdback Fund, this does not relieve the ~~Company Securityholders~~ Indemnifying Persons from their obligation to promptly pay such ~~Representative~~ Agent Losses as they are suffered or incurred~~. The Company Securityholders acknowledge that~~ , nor does it prevent the Securityholders’ Agent ~~shall not be required~~ from seeking any remedies available to ~~expend~~ it at law or ~~risk its own funds or otherwise incur any financial liability in~~ otherwise. For the ~~exercise or performance~~ avoidance 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 whichdoubt, 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 no event 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 delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Adjustment Escrow Fund and/or the Indemnity Escrow Fund.the (cd) ~~After the Closing, any~~ Any notice or communication given or received by, and any decision, action, failure to act (whether or not 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’s authority under Section ~~9.1(a~~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 ~~Company Securityholders~~ Indemnifying Persons and shall be final, binding and conclusive upon each such ~~Company Securityholder~~Indemnifying Person; and each ~~Acquirer~~ Indemnified ~~Party~~ Person shall be entitled to rely ~~exclusively~~ upon any such notice, communication, decision, action, failure to act (whether or not 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,~~ 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 Securityholders’ Agent (d) The Securityholders’ Agent shall be entitled to (i) rely upon the Spreadsheet delivered by the Company to Acquirer prior to the Closing pursuant to Section 5.8, (ii) rely upon any signature believed by it to be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or partyIndemnifying Person.

Appears in 1 contract

Sources: Merger Agreement (10x Genomics, Inc.)

Common use of Securityholders Agent Clause in Contracts