Securityholders Agent. (a) At the Closing, Fortis Advisors LLC shall be constituted and appointed as the Securityholders’ Agent. The Securityholders’ Agent shall be the exclusive agent and attorney-in-fact for and on behalf of the Indemnifying Holders to: (i) execute, as the Securityholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) give and receive notices, instructions and communications permitted or required under this Agreement, the Escrow Agreement or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Indemnifying Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Indemnifying Holder individually), (iii) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Fund in satisfaction of claims asserted by Acquirer (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to this Article VII, (iv) object to such claims pursuant to Section 7.7, (v) 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 Indemnifying Holder or necessary in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Indemnifying Holders, (vii) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Indemnifying Holders (other than with respect to the payment of the Adjusted Consideration) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 1.2, review, negotiate, object to, accept or agree to Acquirer’s calculation of Company Net Working Capital and (ix) take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Indemnifying Holders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Acquirer, Subco and their respective Affiliates (including after the Closing Date, the Company) shall be entitled to rely on the appointment of Fortis Advisors LLC as the Securityholders’ Agent and treat such Securityholders’ Agent as the duly appointed attorney-in-fact of each Indemnifying Holder and has having the duties, power and authority provided for in this Section 7.8. The Indemnifying Holders shall be bound by all actions taken and documents executed by the Securityholders’ Agent in connection with this Article VII, and Acquirer and other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may be removed or replaced from time to time, or if such Person resigns from its position as the Securityholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Fund (or, in the event that there is no cash then held in the Escrow Fund by the Indemnifying Holders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Securityholders’ Agent. The Securityholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet; (ii) rely upon any signature believed by it to be genuine; and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying 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 Indemnifying Holder and shall be binding on any successor thereto; and (ii) shall survive the delivery of an assignment by any Indemnifying Holder of the whole or any fraction of his, her or its interest in the Escrow Fund. (b) Certain Indemnifying Holders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Indemnifying 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 Indemnifying Holder for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as the Securityholders’ Agent while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Indemnifying Holders shall severally but not jointly indemnify the Securityholders’ Agent Group and defend and hold it harmless against any loss, Liability, claim, damage, fee, fine, cost, amount paid in settlement, judgment or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, including all reasonable out-of-pocket costs and expenses and legal fees and other legal and skilled professionals’ costs reasonably incurred by the Securityholders’ Agent and in connection with seeking recovery from insurers (collectively, the “Securityholders’ Agent Expenses”). If not paid directly to the Securityholders’ Agent by the Indemnifying Holders, such Securityholders’ Agent Expenses may be recovered by the Securityholders’ Agent first, from the Expense Fund, second, and with the prior written consent of the Advisory Group, from the portion of the Escrow Fund otherwise distributable to the Indemnifying Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Indemnifying Holders. Any such recovery will be made from the Indemnifying Holders according to their respective Pro Rata Shares of such Securityholders’ Agent Expenses. The Indemnifying Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. (c) 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 7.8(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 Indemnifying Holders and shall be final, binding and conclusive upon each such Indemnifying Holder and such Indemnifying Holder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Holder, and all defenses which may be available to any Indemnifying Holder to contest, negate or disaffirm the action of the Securityholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Securityholders’ Agent Engagement Agreement are waived. Each Indemnified Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Holder. Acquirer, Subco, the Company (from and after the Closing Date) and the 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.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Yelp Inc)
Securityholders Agent. (a) At By virtue of the approval of the Merger and this Agreement by the Indemnifying Holders and without any further action of any of the Indemnifying Holders or the Company, at the Closing, Fortis Advisors LLC shall be constituted and appointed as the Securityholders’ Agent. The Securityholders’ Agent shall be the exclusive agent and attorney-in-attorney in fact for and on behalf of the Indemnifying Holders to: (i) execute, as the Securityholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) give and receive notices, instructions and communications permitted or required under this Agreement, the Escrow Agreement or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Indemnifying Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Indemnifying Holder individually), (iii) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Indemnity Escrow Fund in satisfaction of claims asserted by Acquirer (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to this Article VIIVIII, (iv) object to such claims pursuant to Section 7.78.6, (v) 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 Indemnifying Holder or necessary in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Indemnifying Holders, (vii) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Indemnifying Holders (other than with respect to the payment of the Adjusted ConsiderationMerger Consideration less the Indemnity Escrow Amount) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 1.21.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of Company Net Working Capital Capital, and (ix) take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Indemnifying Holders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Acquirer, Subco Merger Sub and their respective Affiliates (including after the Closing DateEffective Time, the CompanySurviving Corporation) shall be entitled to rely on the appointment of Fortis Advisors LLC as the Securityholders’ Agent and treat such Securityholders’ Agent as the duly appointed attorney-in-fact of each Indemnifying Holder and has having the duties, power and authority provided for in this Section 7.88.7. The Indemnifying Holders Holders, and such Indemnifying Holder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Holder, shall be bound by all actions taken and documents executed by the Securityholders’ Agent in connection with this Article VIIVIII, the Escrow Agreement or the Securityholders’ Agent Engagement Agreement, and all defenses which may be available to any Indemnifying Holder to contest, negate or disaffirm the action of the Securityholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Securityholders’ Agent Engagement Agreement are waived. Acquirer and other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may be removed or replaced from time to time, or if such Person resigns from its position as the Securityholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Indemnity Escrow Fund (or, in the event that there is no cash then held in the Indemnity Escrow Fund by the Indemnifying Holders collectively having a Pro Rata Share greater than 50%) 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 and the Escrow Agreement. No bond shall be required of the Securityholders’ Agent. The Securityholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet; (ii) rely upon any signature believed by it to be genuine; and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying 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 Indemnifying Holder and shall be binding on any successor thereto; and (ii) shall survive the delivery of an assignment by any Indemnifying Holder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(b) Certain Indemnifying Holders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Indemnifying 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 Indemnifying Holder for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as the Securityholders’ Agent while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Indemnifying Holders shall severally but not jointly indemnify the Securityholders’ Agent Group and defend and hold it harmless against any loss, Liability, claim, damage, fee, finecost or expense (including fees, costdisbursements and costs of skilled professionals and in connection with seeking recovery from insurers), amount judgments, fines or amounts paid in settlement, judgment or expense settlement incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement including all reasonable out-of-pocket costs and expenses and legal fees and other legal and skilled professionals’ costs reasonably incurred by the Securityholders’ Agent and in connection with seeking recovery from insurers (collectively, the “Securityholders’ Agent Expenses”). If not paid directly to the Securityholders’ Agent by the Indemnifying Holders, such Securityholders’ Agent Expenses may be recovered by the Securityholders’ Agent first, from the Expense Fund, and second, and with the prior written consent of the Advisory Group, from the portion of the Indemnity Escrow Fund otherwise distributable to the Indemnifying Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Indemnifying Holders. Any such recovery will be made from the Indemnifying Holders according to their respective Pro Rata Shares Share of such Securityholders’ Agent Expenses. The Indemnifying Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) 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 7.8(a8.7(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 Indemnifying Holders and their successors and shall be final, binding and conclusive upon each such Indemnifying Holder and such Indemnifying Holder’s successors as if expressly confirmed its successors; and ratified in writing by such Indemnifying Holder, and all defenses which may be available to any Indemnifying Holder to contest, negate or disaffirm the action of the Securityholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Securityholders’ Agent Engagement Agreement are waived. Each each Indemnified Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Holder. Acquirer, SubcoMerger Sub, the Company (from and after the Closing Date) Surviving Corporation and the 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.
(d) Acquirer will withhold each Indemnifying Holder’s Pro Rata Share of $100,000 (the aggregate amount so withheld from all Indemnifying Holders, the “Expense Fund Amount”) from the portion of the Merger Consideration otherwise payable by Acquirer to such Indemnifying Holders pursuant to Section 1.3(a)(i), Section 1.3(a)(ii), Section 1.3(a)(iii)(A) and Section 1.3(a)(iv) and pay such amount at Closing to the Securityholders’ Agent (the aggregate Expense Fund Amount held by the Securityholders’ Agent at any given time, the “Expense Fund”). The Expense Fund Amount shall be available for use by the Securityholders’ Agent in connection with the performance of the Securityholders’ Agent’s duties and obligations under this Agreement, the Securityholders’ Agent Engagement Agreement and the Escrow Agreement, and the Securityholders’ Agent shall pay any amounts remaining in the Expense Fund to Acquirer for distribution by Acquirer to the Indemnifying Holders in accordance with their respective Pro Rata Shares at such time as the Securityholders’ Agent determines to be appropriate. The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Indemnifying Holders shall not receive interest or other earnings on the Expense Fund Amount. For tax purposes, the Expense Fund Amount shall be treated as having been received and voluntarily set aside by the applicable Indemnifying Holders following the Effective Time. For the avoidance of doubt, no Indemnifying Holders shall have any rights in or claims to the Expense Fund Amount.
(e) The Securityholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Holder or other party.
(f) 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 Indemnifying Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Holder of the whole or any fraction of his, her or its interest in the Indemnity Escrow Fund.
Appears in 2 contracts
Securityholders Agent. (a) At the Closing, Fortis Advisors LLC shall be constituted and appointed as the Securityholders’ Agent. The Securityholders’ Agent shall be the exclusive agent and the true and lawful attorney-in-fact for and on behalf of the Indemnifying Holders Company Securityholders to: (i) execute, as the Securityholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) give and receive notices, instructions and communications permitted or required under this Agreement, the Escrow Agreement or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Indemnifying HolderCompany Securityholder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Indemnifying Holder Company Securityholder individually), (iii) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Fund in satisfaction of claims asserted by Acquirer (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to this Article VIIVIII, (iv) object to such claims pursuant to Section 7.78.6, (v) 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 Indemnifying Holder Company Securityholder or necessary in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Indemnifying HoldersCompany Securityholders, (vii) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Indemnifying Holders Company Securityholders (other than with respect to the payment of the Adjusted ConsiderationMerger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 1.21.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of Company Net Working Capital and (ix) take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Securityholders’ Agent shall have no obligation to act on behalf of the Indemnifying HoldersCompany Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. The Securityholders’ Agent shall be entitled to: (i) rely upon any signature reasonably believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party. Acquirer, Subco Merger Sub and their respective Affiliates (including after the Closing DateEffective Time, the CompanySurviving Corporation) shall be entitled to rely on the appointment of Fortis Advisors LLC as the Securityholders’ Agent and treat such Securityholders’ Agent as the duly appointed attorney-in-fact of each Indemnifying Holder Company Securityholder and has having the duties, power and authority provided for in this Section 7.88.7. The Indemnifying Holders 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) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund. The Company Securityholders shall be bound by all actions taken and documents executed by the Securityholders’ Agent in connection with this Article VIIVIII, and Acquirer and other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may be removed or replaced from time to time, or if such Person resigns from its position as the Securityholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Fund (or, in the event that there is no cash then held in the Escrow Fund by the Indemnifying Holders Company Securityholders collectively having a Closing Pro Rata Share greater than 50%% and Company Securityholders holding at least 50% of the Company Series B Stock (as of immediately prior to the Effective 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 and the Escrow Agreement. No bond shall be required of the Securityholders’ Agent. The Securityholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet; (ii) rely upon any signature believed by it to be genuine; and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying 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 Indemnifying Holder and shall be binding on any successor thereto; and (ii) shall survive the delivery of an assignment by any Indemnifying Holder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(b) Certain Indemnifying Holders Company Securityholders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Indemnifying HoldersCompany Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Agent Group”) shall be liable to any Indemnifying Holder Company Securityholder for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as the Securityholders’ Agent while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Indemnifying Holders Company Securityholders shall severally but not jointly (with such Liability determined in accordance with such Company Securityholders’ Indemnity Pro Rata Share) indemnify the Securityholders’ Agent Group and defend and hold it the Securityholders’ Agent Group harmless against any loss, Liability, claim, damage, fee, fine, cost, judgment, amount paid in settlement, judgment settlement or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its the Securityholders’ Agent’s duties hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement including all reasonable out-of-pocket costs and expenses and legal fees and other legal and skilled professionals’ costs reasonably incurred by the Securityholders’ Agent and in connection with seeking recovery from insurers (collectively, the “Securityholders’ Agent Expenses”). If not paid directly to the Securityholders’ Agent by the Indemnifying HoldersCompany Securityholders, such Securityholders’ Agent Expenses may be recovered by the Securityholders’ Agent first, from the Expense Fund, second, and with the prior written consent of the Advisory Group, from the portion of the Escrow Fund otherwise distributable to the Indemnifying Holders Company Securityholders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Indemnifying Holders. Any such recovery will be made from the Indemnifying Holders Company Securityholders according to their respective Indemnity Pro Rata Shares of such Securityholders’ Agent Expenses. The Indemnifying Holders Company Securityholders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the 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. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) 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 7.8(a8.7(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 Indemnifying Holders Company Securityholders and shall be final, binding and conclusive upon each such Indemnifying Holder and such Indemnifying Holder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Holder, Company Securityholder; and all defenses which may be available to any Indemnifying Holder Company Securityholder to contest, negate or disaffirm the action of the Securityholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Securityholders’ Agent Engagement Agreement are waived. Each Indemnified Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying HolderCompany Securityholder. Acquirer, SubcoMerger Sub, the Company (from and after the Closing Date) Surviving Corporation and the 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.
(d) The Securityholders’ Agent shall use the Securityholders’ Agent Fund to (i) make any payment required to be made for the account of the Company Securityholders pursuant to this Agreement, (ii) pay any Transaction Expenses not otherwise paid at the Closing or taken into account in the calculation of the Merger Consideration (including any Transaction Expenses incurred after the Closing) and (iii) pay all Securityholders’ Agent Expenses incurred by or on behalf of the Securityholders’ Agent, in its capacity as such, including all Securityholders’ Agent Expenses incurred in connection with any pending or threatened dispute or claim with respect to this Agreement, any agreement, document or instrument entered into pursuant to this Agreement, or the Transactions. The Securityholders’ Agent Fund will be held or disbursed, in whole or in part, as determined by the Securityholders’ Agent in its sole discretion. The Securityholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Securityholders’ Agent 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 Securityholders’ Agent Fund, and has no tax reporting or income distribution obligations. The retention by the Securityholders’ Agent of any amounts in the Securityholders’ Agent Fund shall not be evidence that the Company Securityholders or the Securityholders’ Agent have any liability under this Agreement. Any amounts received by the Securityholders’ Agent, in its capacity as such, including any amounts released from the Escrow Fund, may be used at the Securityholders’ Agent’s discretion to increase the Securityholders’ Agent Fund. If the Securityholders’ Agent determines to release all or a portion of the Securityholders’ Agent Fund to the Company Securityholders, such amounts will be distributed to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Escrow Distribution Pro Rata Shares. No interest shall accrue or be paid on any amounts payable from the Securityholders’ Agent Fund to the Company Securityholders or any other Person hereunder. The determination by the Securityholders’ Agent of amounts payable under this Section 8.7(d) shall be final and binding.
Appears in 1 contract
Sources: Merger Agreement (Etsy Inc)
Securityholders Agent. (a) At the Closing, Fortis Advisors LLC Shareholder Representative Services LLC, shall be constituted and appointed as the Securityholders’ Agent. The For purposes of this Agreement, the term “Securityholders’ Agent Agent” shall be mean the exclusive agent and attorney-in-fact for and on behalf of the Indemnifying Holders toCompany Securityholders to take all actions necessary or appropriate on behalf of the Company Securityholders in connection with this agreement and the agreements ancillary hereto, including without limitation: (i) execute, as the Securityholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) give and receive notices, instructions instructions, and communications permitted or required under this Agreement, the Escrow Agreement or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Indemnifying HolderCompany Securityholder, to or from Acquirer Acquiror (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument hereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Indemnifying Holder Company Securityholder individually), ; (iii) review, negotiate and agree to and authorize Acquirer deliveries to reclaim an amount Acquiror of cash from the Escrow Fund in satisfaction of claims asserted by Acquirer Acquiror (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to this Article VII, ARTICLE 8; (iv) object to such claims pursuant to Section 7.7, 8.4; (v) 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 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 transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Indemnifying Holder Company Securityholder or necessary in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (vi) consult with legal counsel, independent public accountants and other experts reasonably selected by it, solely at the cost and expense of the Indemnifying Holders, Company Securityholders; (vii) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Indemnifying Holders Company Securityholders (other than with respect to the payment of the Adjusted Aggregate Merger Consideration) in accordance with the terms hereof and in the manner provided herein, ; and (viii) pursuant to Section 1.2, review, negotiate, object to, accept or agree to Acquirer’s calculation of Company Net Working Capital and (ix) take all actions necessary or appropriate in the judgment of the Securityholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoingAcquiror, the Securityholders’ Agent shall have no obligation to act on behalf of the Indemnifying Holders, except as expressly provided herein, in the Escrow Agreement and in the Securityholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Acquirer, Subco Merger Sub and their respective Affiliates (including without limitation, after the Closing DateEffective Time, the CompanySurviving Entity) shall be entitled to rely on the appointment of Fortis Advisors Shareholder Representative Services LLC as the Securityholders’ Agent and treat such Securityholders’ Agent as the duly appointed attorney-in-fact of each Indemnifying Holder Company Securityholder and has having the duties, power and authority provided for in this Section 7.88.6. The Indemnifying Holders Company Securityholders shall be bound by all actions taken and documents executed by the Securityholders’ Agent in connection with this Article VIIARTICLE 8, and Acquirer Acquiror and other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Securityholders’ Agent. The Person serving as the Securityholders’ Agent may be removed or replaced from time to time, or if such Person resigns from its position as the Securityholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Fund (or, in the event that there is no cash then held in the Escrow Fund by the Indemnifying Holders collectively having a Pro Rata Share greater than 50%) upon not less than 30 thirty (30) days’ prior written notice to Acquirer. No bond shall be required of the Securityholders’ Agent. The Securityholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet; (ii) rely upon any signature believed by it to be genuine; and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying 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 Indemnifying Holder and shall be binding on any successor thereto; and (ii) shall survive the delivery of an assignment by any Indemnifying Holder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(b) Certain Indemnifying Holders have entered into an engagement agreement (the “Securityholders’ Agent Engagement Agreement”) with the Securityholders’ Agent to provide direction to the Securityholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Agent Engagement Agreement (such Indemnifying 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 Indemnifying Holder for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Agent Engagement Agreement as the Securityholders’ Agent while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Indemnifying Holders shall severally but not jointly indemnify the Securityholders’ Agent Group and defend and hold it harmless against any loss, Liability, claim, damage, fee, fine, cost, amount paid in settlement, judgment or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, including all reasonable out-of-pocket costs and expenses and legal fees and other legal and skilled professionals’ costs reasonably incurred by the Securityholders’ Agent and in connection with seeking recovery from insurers (collectively, the “Securityholders’ Agent Expenses”). If not paid directly to the Securityholders’ Agent by the Indemnifying Holders, such Securityholders’ Agent Expenses may be recovered by the Securityholders’ Agent first, from the Expense Fund, second, and with the prior written consent of the Advisory Group, from the portion of the Escrow Fund otherwise distributable to the Indemnifying Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Indemnifying Holders. Any such recovery will be made from the Indemnifying Holders according to their respective Pro Rata Shares of such Securityholders’ Agent Expenses. The Indemnifying Holders acknowledge that the Securityholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Agent shall not be required to take any action unless the Securityholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Agent against the costs, expenses and liabilities which may be incurred by the Securityholders’ Agent in performing such actionsAcquiror. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) 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 7.8(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 Indemnifying Holders and . No bond shall be final, binding and conclusive upon each such Indemnifying Holder and such Indemnifying Holder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Holder, and all defenses which may be available to any Indemnifying Holder to contest, negate or disaffirm the action of the Securityholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Securityholders’ Agent Engagement Agreement are waived. Each Indemnified Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Holder. Acquirer, Subco, the Company (from and after the Closing Date) and the 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 required of the Securityholders’ Agent.
Appears in 1 contract
Sources: Merger Agreement (Rapid7, Inc.)