Securityholders Agent. (a) Timeline Venture Management, LLC, a California limited liability company, shall be constituted and appointed as agent ("SECURITYHOLDERS' AGENT") for and on behalf of the Company Stockholders to give and receive notices and communications, to authorize payment to Parent and Surviving Corporation pursuant to Section 8 in satisfaction of Indemnification Claims, to object to such deliveries and to make claims on behalf of the Company Stockholders pursuant to Section 8, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims, to resolve any Indemnification Claims and to take all actions necessary or appropriate in the judgment of the Securityholders' Agent for the accomplishment of the foregoing. Such agency may be changed by the holders of a majority in interest of the Convertible Promissory Notes, and the shares issuable upon conversion thereof, from time to time upon not less than 10 days' prior written notice to Parent. 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) 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 Stockholders shall severally indemnify the Securityholders' Agent and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholders' Agent and arising out of or in connection with the acceptance or administration of his duties hereunder. (c) The Securityholders' Agent shall have reasonable access to information about Company and the reasonable assistance of Company's officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Securityholders' Agent shall treat confidentially and not disclose any nonpublic information from or about Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Appears in 1 contract
Sources: Merger Agreement (Nexprise Inc)
Securityholders Agent. (a) Timeline Venture ManagementIn the event that the Merger and the Subsidiary Merger are approved by the Former Securityholders, LLCeffective upon such approvals, a California limited liability companyand without further act of any Former Securityholder, ▇▇ ▇▇ shall be constituted and appointed as agent and attorney-in-fact ("SECURITYHOLDERS' AGENT"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 Stockholders Former Securityholders, including, without limitation, to give and receive notices and communications, to act on behalf of the Former Securityholders with respect to the Escrow Account and any other matters arising under this Agreement or the other Transaction Documents, to authorize payment delivery to Parent of any funds and Surviving Corporation pursuant to Section 8 property in its possession or in the possession of the Escrow Agent in satisfaction of Indemnification Claimsclaims by Parent, to object to such deliveries and to make claims on behalf of the Company Stockholders pursuant to Section 8deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand commence, prosecute, participate in, settle, dismiss or otherwise terminate, as applicable, lawsuits and claims, mediation and arbitration proceedings, to retain funds which would otherwise be released to the Former Securityholders from the Escrow Account for the purpose of funding the costs of any such proceedings and to comply with orders of courts and awards of courts, mediators and arbitrators with respect to Indemnification Claimssuch suits, to resolve any Indemnification Claims claims or proceedings, and to take all actions necessary or appropriate in the judgment of the Securityholders' ’ Agent for the accomplishment of the foregoing. The Securityholders’ Agent shall for all purposes be deemed the sole authorized agent of the Former Securityholders until such time as the agency is terminated. Such agency may be changed by the holders of a majority in interest of the Convertible Promissory Notes, and the shares issuable upon conversion thereof, Former Securityholders from time to time upon not less than 10 days' thirty (30) days prior written notice to Parent; provided, however, that the Securityholders’ Agent may not be removed unless holders of at least two-thirds interest in the Merger Consideration agree to such removal and to the identity of the substituted Securityholders’ Agent. Any vacancy in the position of Securityholders’ Agent may be filled by approval of the recipients of a majority of the Merger Consideration. No bond shall be required of the Securityholders' ’ Agent, and the Securityholders' ’ Agent shall not receive no compensation for his its services. Notices or communications to or from the Securityholders' ’ Agent shall constitute notice to or from each of the Company StockholdersFormer Securityholders during the term of the agency. Material notices or communications to the Securityholders’ Agent will be forwarded promptly to each of the Former Securityholders. Notwithstanding anything in this Section 11.6 to the contrary, the Securityholders’ Agent may not: (i) accept service of process on behalf of any Former Securityholder in its individual capacity; or (ii) take any action on behalf of a Former Securityholder with respect to any claim that may be asserted against such Former Securityholder in its individual capacity, whether for alleged fraud or otherwise, unless it has received the written consent of the Former Securityholder to take any such action.
(b) The Securityholders' ’ Agent shall 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 for any act done or omitted hereunder as Securityholders' Agent to anyone while acting in good faith 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 the exercise of reasonable judgment this Agreement and any act done no other covenants or omitted pursuant to the advice of counsel obligations shall be conclusive evidence implied under this Agreement against the Securityholders’ Agent; provided, however, that the foregoing shall not act as a limitation on the powers of such good faiththe Securityholders’ Agent determined by it to be reasonably necessary to carry out the purposes of its obligations. The Company Stockholders Former Securityholders, on a pro rata basis, shall severally indemnify the Securityholders' ’ Agent and hold him it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholders' ’ Agent (unless arising out of its gross negligence or willful misconduct) and arising out of or in connection with the acceptance or administration of his its duties hereunderunder this Agreement. 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) the resolution of all indemnification claims under Article XI hereof and the determination by the 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 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 11.1 of this Agreement, the Securityholders’ Agent shall have reasonable access to information about the Company and Parent and the reasonable assistance of the Surviving Company's ’s and Parent’s officers and employees for purposes of performing his its duties and exercising his its rights hereunder, provided that the Securityholders' ’ Agent shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company or Parent to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).information
Appears in 1 contract
Securityholders Agent. (a) Timeline Venture ManagementBy voting in favor of the adoption of this Agreement, LLCthe approval of the principal terms of the Merger and the consummation of the Merger, and execution of a California limited liability companyStockholder Joinder and Release Agreement and/or Optionholder Release Agreement, or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Indemnifying Person shall be constituted and appointed as agent ("SECURITYHOLDERS' AGENT") for and on behalf of deemed to have approved the Company Stockholders to give and receive notices and communications, to authorize payment to Parent and Surviving Corporation pursuant to Section 8 in satisfaction of Indemnification Claims, to object to such deliveries and to make claims on behalf of the Company Stockholders pursuant to Section 8, to agree to, negotiate, enter into settlements and compromises designation of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to Indemnification Claimshereby designates, Shareholder Representative Services LLC as the Securityholders’ Agent, to resolve any Indemnification Claims act as the representative, exclusive agent and to take all actions necessary or appropriate in the judgment attorney-in-fact of the Securityholders' Agent Indemnifying Persons for the accomplishment of the foregoing. Such agency may be changed by the holders of a majority all purposes in interest of the Convertible Promissory Notes, and the shares issuable upon conversion thereof, from time to time upon not less than 10 days' prior written notice to Parent. 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.connection with this
(b) The Securityholders' ’ Agent shall not be liable to any Indemnifying Person for any act done or omitted hereunder as in connection with the Securityholders' Agent ’ Agent’s services pursuant to this Agreement and any agreements ancillary hereto while acting in good faith and in the exercise of reasonable judgment (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), except in the event of liability directly resulting from the Securityholders’ Agent’s gross negligence, willful misconduct or bad faith. The Company Stockholders Securityholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Persons shall severally and not jointly and in accordance with their respective Pro Rata Share indemnify the Securityholders' ’ Agent and hold him the Securityholders’ Agent harmless from and against any lossand all losses, liability or 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 incurred without gross negligence or bad faith on the part of the Securityholders' Agent document location, duplication and shipment) arising out of or in connection with the Securityholders’ Agent’s acceptance or administration of his duties hereunderthis Agreement and any agreements ancillary hereto (collectively, “Agent Losses”), in each case as such Agent Loss is suffered or incurred; provided, that in the event that any such Agent Loss is finally adjudicated to have been directly caused by the gross negligence, willful misconduct or bad faith of the Securityholders’ Agent, the Securityholders’ Agent will reimburse the Indemnifying Persons the amount of such indemnified Agent Loss to the extent attributable to such gross negligence or willful misconduct.
(c) The If not paid directly to the Securityholders' ’ Agent by the Indemnifying Persons, the Agent Losses shall have reasonable access be satisfied (i) from the Expense Fund Amount and (ii) the Holdback Fund at such time as the remaining amounts would otherwise be distributable to information about Company the Indemnifying Persons and (iii) to the extent the amount of the Agent Losses exceeds amounts available to the Securityholders’ Agent under (i), from each Indemnifying Person, severally and not jointly and in proportion to its Pro Rata Share; provided, that while this section allows the Securityholders’ Agent to be paid from the Expense Fund Amount and the reasonable assistance of Company's officers and employees for purposes of performing his duties and exercising his rights hereunderHoldback Fund, provided that this does not relieve the Indemnifying Persons from their obligation to promptly pay such Agent Losses as they are suffered or incurred, nor does it prevent the Securityholders' ’ Agent from seeking any remedies available to it at law or otherwise. For the avoidance of doubt, in no event shall treat confidentially the
(d) Any notice or communication given or received by, and any decision, action, failure to act (whether or not disclose 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 9.8(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 Indemnifying Persons and shall be final, binding and conclusive upon each such Indemnifying Person; and each Indemnified Person shall be entitled to rely upon any nonpublic information from such notice, communication, decision, action, failure to act (whether or about Company not within a designated period of time), agreement, consent, settlement, resolution or instruction as being a notice or communication to anyone (except on or by, or a need decision, action, failure to know basis to individuals who agree to treat act within a designated period of time, agreement, consent, settlement, resolution or instruction of each and every such information confidentially)Indemnifying Person.
Appears in 1 contract
Securityholders Agent. (a) Timeline Venture ManagementBy 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 California 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 the exclusive agent, representative and appointed as agent ("SECURITYHOLDERS' AGENT") true and lawful attorney-in-fact for and on behalf of the Company Stockholders to 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 notices, instructions and communicationscommunications permitted or required under this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement, for and on behalf of any Company Securityholder, to authorize payment or from Acquirer relating to Parent this Agreement, the Escrow Agreement, the Exchange Agent Agreement or the Securityholders’ Agent Engagement Agreement and Surviving Corporation 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 8 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 satisfaction the Spreadsheet and deliver or cause to be delivered an updated version of Indemnification Claimsthe 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 deliveries and to make claims on behalf of the Company Stockholders pursuant to Section 8, to 1.6 or Article VIII; (viii) consent or agree to, negotiate, enter into into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with orders Orders of courts and awards of arbitrators with respect to Indemnification Claimsto, to such claims, resolve any Indemnification Claims 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 for in connection with the accomplishment 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 foregoingCompany Securityholders, except as expressly provided herein, in the Escrow Agreement, in the Exchange Agent Agreement or in the Securityholders’ Agent Engagement Agreement. Such agency 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 changed by available to any Company Securityholder to contest, negate or disaffirm the holders of a majority in interest action of the Convertible Promissory NotesSecurityholder’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 shares issuable upon conversion thereof, 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 10 30 days' ’ prior written notice to ParentAcquirer. 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, 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) The 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 not be liable to any Company Securityholder for any action or failure to 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 Stockholders shall severally indemnify the Securityholders' Agent and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholders' Agent and arising out of or in connection with the acceptance or administration of his 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 have reasonable access be entitled to information about Company and (i) rely upon the reasonable assistance of Company's officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that Spreadsheet delivered by the Securityholders' Agent shall treat confidentially and not disclose any nonpublic information from or about Company to anyone Acquirer prior to the Closing pursuant to Section 5.8, (except ii) rely upon any signature believed by it to be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on a need to know basis to individuals who agree to treat such information confidentially)behalf of the applicable Company Securityholder or party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Castle Biosciences Inc)
Securityholders Agent. (a) Timeline Venture ManagementBy virtue of the approval of this Agreement by the Securityholders, LLCand without further action of any Securityholder, a California limited liability company, each Securityholder shall be deemed to have irrevocably constituted and appointed the Securityholders’ Agent as agent ("SECURITYHOLDERS' AGENT") and attorney-in-fact for and on behalf of the Company Stockholders Securityholders, and the Securityholders’ Agent shall have full power and authority to (i) represent the Securityholders with respect to this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby, (ii) to give and receive notices and communicationscommunications on behalf of the Securityholders, (iii) to authorize payment delivery to Parent Acquiror of the Escrow Shares and Surviving Corporation release of the Securityholder Cash Amount and such other property as may be held by the Escrow Agent, including, with respect to the Escrow Shares, as may be necessary to satisfy claims pursuant to Section 8 in satisfaction of Indemnification Claimsthis Agreement and the Escrow Agreement, (iv) to object to such deliveries and to make claims on behalf of the Company Stockholders pursuant to Section 8and/or claims, (v) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to Indemnification Claimssuch claims, (vi) to resolve act on the Securityholders’ behalf with respect to the matters set forth in Sections 2.12, 2.13, 5.11 and 5.13 and Section 8 hereof and in the Escrow Agreement, in accordance with the terms and provisions of such sections and such agreement, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in such sections and such agreement on behalf of the Securityholders, (vii) to direct payment of the Management Bonus Plan Payments, if any, (viii) to engage counsel and such accountants and other advisors and to incur such other expenses in connection with the performance of its duties as Securityholders’ Agent pursuant to this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby as the Securityholders’ Agent may in its sole discretion deem appropriate, (ix) to recover from the Agent Escrow Amount (and to direct the Escrow Agent to deliver to it) the amount of any Indemnification Claims such expenses, (x) to enter into amendments and to waive compliance with the terms of this Agreement and/or the Escrow Agreement in accordance with the provisions hereof and thereof, as applicable, and (xi) to take all actions necessary or appropriate in the judgment of the Securityholders' ’ Agent for the interpretation of this Agreement and the Escrow Agreement and the accomplishment of the foregoing. Such agency may be changed by the holders of a majority in interest of the Convertible Promissory Notes, and the shares issuable upon conversion thereof, from time to time upon not less than 10 days' prior written notice to Parent. No bond shall be required of the Securityholders' ’ Agent, and the Securityholders' ’ Agent shall receive no compensation for his its services. Notices or communications to or from the Securityholders' Agent shall constitute notice to or from each of the Company Stockholders.
(b) All notices to be given to the Securityholders by Acquiror or Merger Sub, or to be given by the Securityholders to Acquiror or Merger Sub, in each case pursuant to this Agreement, shall be given to the Securityholders’ Agent by Acquiror or Merger Sub and given by the Securityholders’ Agent to Acquiror or Merger Sub, respectively, for the benefit of the Securityholders and notices given in such manner shall discharge in full the notice requirements of Acquiror or Merger Sub or the Securityholders, as applicable, under this Agreement; provided, however, that with respect to notices, communications or other materials required to be provided to or delivered by Acquiror or Merger Sub to a Securityholder pursuant to Section 2.11, the Registration Statement or under applicable Law, such notices shall be sent directly to the such Securityholder. By their appointment of the Securityholders’ Agent, the Securityholders hereby confirm all that the Securityholders’ Agent shall do or cause to be done by virtue of the Securityholders’ Agent’s appointment as the representative of the Securityholders hereunder and under the Escrow Agreement. The Securityholders' ’ Agent shall act for the Securityholders on all of the matters set forth in this Agreement and the Escrow Agreement, including, without limitation, with respect to the Securityholders’ indemnification rights and obligations under this Agreement, in the manner the Securityholders’ Agent believes to be in the best interest of the Securityholders and consistent with the obligations of the Securityholders under this Agreement; provided, however, that the Securityholders’ Agent shall not be responsible to any Securityholder for any indemnification claims made subsequent to the Escrow Termination Date or for any indemnification claims against Securityholders to the extent Damages from the claim exceed the Cap.
(c) The Securityholders’ Agent shall not be liable to the Securityholders for any act done or omitted hereunder as Securityholders' Agent while acting in good faith and not in a manner constituting gross negligence or willful misconduct; for the exercise avoidance of reasonable judgment doubt, for all purposes hereunder and under the Escrow Agreement, any act done or omitted by the Securityholders’ Agent pursuant to the advice of counsel shall be conclusive evidence of such the Securityholders’ Agent’s good faith. The Company Stockholders Securityholders shall severally but not jointly indemnify and hold the Securityholders' ’ Agent and hold him harmless against any loss, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Securityholders' ’ Agent and arising out of or in connection with the acceptance or administration of his the Securityholders’ Agent’s duties hereunder.
(cd) The From and after the Closing, the Securityholders' ’ Agent shall have reasonable access to information about Company Target and the reasonable assistance of Company's Target’s officers and employees for purposes of performing his the Securityholders’ Agent’s duties and exercising his the Securityholders’ Agent’s rights hereunder, provided that the Securityholders' ’ Agent shall treat confidentially and not disclose any nonpublic information from or about Company Target to anyone (except on a need to know basis to individuals who agree to treat such information confidentiallyconfidentially and except as required any law, rule, regulation or court order).
(e) The Securityholders’ Agent shall be granted access during business hours to the respective books, records and accounting work papers of the Target and Surviving Corporation to conduct the Securityholders’ Agent’s review, and the Acquiror shall use commercially reasonable efforts as practicable to respond promptly, in good faith and as fully and accurately as is reasonably possible to inquiries from the Securityholders’ Agent related to such review. Acquiror will use reasonable efforts to provide access to the books and records of the Target and Surviving Corporation electronically, and shall transmit financial statements, general journals and trial balances of the Target and Target Subsidiaries and Surviving Corporation and its subsidiaries in formats such as Excel spreadsheets, or searchable Word or pdf documents.
(f) In the event that the Securityholders’ Agent (or any successor) dies, becomes legally incapacitated or resigns as Securityholders’ Agent (as applicable), a successor Securityholders’ Agent shall be appointed in writing by the holders of a majority in interest of the shares of Target Capital Stock outstanding immediately prior to the Effective Time, with such appointment to be effective upon delivery of executed counterparts of such writing to Acquiror and Escrow Agent, together with an acknowledgment signed by the successor Securityholders’ Agent accepting the responsibility of successor Securityholders’ Agent and agreeing to perform and be bound by all provisions of this Agreement and the Escrow Agreement applicable to the Securityholders’ Agent. If the Securityholders fail to make appoint a successor within 30 days following any such death, legal incapacitation or resignation, Acquiror or any Securityholder may apply to a court of competent jurisdiction for the appointment of a successor Securityholders’ Agent.
Appears in 1 contract
Securityholders Agent. (a) Timeline Venture ManagementBy virtue of the adoption of this Agreement by the Company Stockholders, LLCthe Effective Time Holders irrevocably nominate, a California constitute and appoint Blueprint Ventures Management I, LLC as the agent and true and lawful exclusive proxy and attorney-in-fact of the Effective Time Holders (the “Securityholders’ Agent”), with full power of substitution and resubstitution, to act solely and exclusively in the name, place and stead of the Effective Time Holders for purposes of executing any documents and taking any actions that the Securityholders’ Agent may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with any of the Transactional Agreements or any of the Transactions, including but not limited liability companyto the power:
(i) to act for the Effective Time Holders with regard to matters pertaining to indemnification referred to in this Agreement, shall be constituted and appointed as agent ("SECURITYHOLDERS' AGENT") for and including the power to pay or compromise any indemnity claim on behalf of the Company Stockholders Effective Time Holders;
(ii) to act for the Effective Time Holders with regard to matters pertaining to litigation or arbitration;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby or amendments or waivers thereto that the Securityholders’ Agent deems necessary or appropriate;
(iv) to receive funds (including all or any portion of the Final Merger Consideration), make payments of funds, and give receipts for funds on behalf of any Effective Time Holder;
(v) to receive funds for the payment of expenses of the Effective Time Holders and receive notices and communications, apply such funds in payment for such expenses;
(vi) to authorize payment direct any payments due under the Transaction Bonus Plan;
(vii) to Parent and Surviving Corporation pursuant to Section 8 in satisfaction of Indemnification Claims, to object to such deliveries and to make claims do or refrain from doing any further act or deed on behalf of the Company Stockholders pursuant Effective Time Holders that the Securityholders’ Agent deems necessary or appropriate in its sole discretion relating to Section 8, the subject matter of this Agreement as fully and completely as the Effective Time Holders could do if personally present;
(viii) to agree communicate to, negotiateand receive all communications and notices from, enter into settlements Parent, Merger Sub and compromises ofthe Company;
(ix) to receive service of process in connection with any claims under this Agreement;
(x) engage attorneys, accountants, financial and demand arbitration other advisors, paying agents and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims, to resolve any Indemnification Claims and to take all actions other persons necessary or appropriate in the judgment of the Securityholders' Agent for ’ Agent; and
(xi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all actions that the accomplishment of Securityholders’ Agent, in its sole discretion, may consider necessary, proper or convenient in connection with or to carry out the foregoing. Such agency may be changed transactions contemplated by the holders of a majority in interest of the Convertible Promissory Notes, this Agreement and the shares issuable upon conversion thereofEscrow Agreement. Blueprint Ventures Management I, from time to time upon not less than 10 days' prior written notice to Parent. No bond shall be required of LLC hereby accepts its appointment as 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) 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 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 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 in the exercise of reasonable judgment faith, and any act done or omitted to be done pursuant to the advice of counsel or any other expert, consultant or advisor retained by the Securityholders’ Agent shall be conclusive evidence of such good faith. The By virtue of the adoption of this Agreement by the Company Stockholders shall Stockholders, the Effective Time Holders hereby agree (A) to reimburse the Securityholders’ Agent for all out-of-pocket costs and expenses incurred by the Securityholders’ Agent under this Agreement or the other Transactional Agreements to which the Securityholders’ Agent is a party, including fees for any attorneys or other representative it may employ, and (B) to severally indemnify and hold harmless and defend the Securityholders' Agent ’ Agent, its agents and hold him harmless assigns against all Liabilities (including legal and other professional fees and expenses, and litigation costs) and actions of any loss, liability kind (whether known or expense incurred without gross negligence or bad faith on the part of the Securityholders' Agent and unknown) arising out of or in connection with (x) the acceptance Securityholders’ Agent’s omissions to act, or administration actions taken, resulting from, arising out of, or incurred in connection with, or otherwise with respect to, this Agreement or the other Transactional Agreements to which the Securityholders’ Agent is a party (in its capacity as Securityholders’ Agent), or (y) services taken with respect to this Agreement or the other Transactional Agreements to which the Securityholders’ Agent is a party (in its capacity as Securityholders’ Agent), or reasonably believed to be in the scope of his duties hereunderthe Securityholders’ Agent’s authority; provided, however, that the maximum aggregate Damages payable by each Effective Time Holder pursuant to this Section 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 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 any Consent to be given or action to be taken by, any Effective Time Holder); and
(ii) each Indemnitee shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Effective Time Holder by 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 (.pdf) or other document that is believed by it to be genuine and to have reasonable access been telexed, telegraphed, faxed, emailed or cabled by a Effective Time Holder or to information about Company have been signed and presented by a Effective Time Holder.
(e) If the reasonable assistance of Company's officers and employees for purposes of performing his duties and exercising his rights Securityholders’ Agent shall die, become disabled or otherwise be unable to fulfill its responsibilities hereunder, provided the Effective Time Holders shall, within ten (10) days after such death or disability, appoint a successor to the Securityholders’ Agent and immediately thereafter notify Parent of the 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 prior to the Closing shall not prevent ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP from representing the Securityholders' ’ Agent shall treat confidentially and not disclose in connection with any nonpublic information from or about Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially)matters involving, including any disputes with, any of the parties after the Closing.
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