Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder. (b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to: (i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement; (ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate; (iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company. (c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Brightcove Inc)
Securityholders’ Representative. (a) Each Seller hereby irrevocably designates and appoints Pro-Edge, LP. as, and Pro-Edge, LP. hereby irrevocably accepts the designation as and agrees to be, the representative of each Seller and the “Securityholders Representative” for purposes of this Agreement. The Securityholders’ Securityholders Representative shall have full is hereby designated as the attorney in fact and agent for and on behalf of each Seller and his, her or its respective heirs, successors and assigns with respect to the exercise of the power and authority to take all actions and make all decisions on behalf of each Seller under this Agreement and any other document or agreement delivered in connection herewith, including without limitation, decisions and actions with respect to payments and adjustments under Article II, with respect to satisfaction and waiver of closing conditions under Article IX, and with respect to claims for indemnification under Article X. The Securityholders Representative also shall have the Escrow Agreement that are power to give and receive all notices and communications to be taken given or received by the Securityholders’ Representative. The Securityholders’ Representative shall take Sellers, or any and all actions which he or she believes are necessary or appropriate of them, under this Agreement and to receive service of process for the Escrow AgreementSellers, includingor any of them, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving in connection with any notice or instruction permitted or required claims under this Agreement and to take all actions on behalf of the Sellers, or any of them, necessary to settle, pay or take any other actions with respect to the Escrow Agreement Sellers’ or any Seller’s indemnification obligations under Article X. Each Seller shall be bound by all actions taken and documents executed by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Securityholders Representative in connection with this Agreement Agreement. Notices or communications to or from the Escrow Agreement, defending all claims arising pursuant Securityholders Representative shall constitute notice to Section 3.5 (an “NWC Claim”), defending all indemnity claims against or from each Seller. In performing the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under functions specified in this Agreement, taking the Securityholders Representative may act upon any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants instrument or other representatives writing believed by the Securityholders Representative in good faith to be genuine and to be signed or presented by the proper Person and shall not be liable in connection with the foregoing mattersperformance by it of its duties pursuant to the provisions of this Agreement. The Securityholders Representative shall be indemnified and held harmless by the Indemnifying Securityholders, jointly and severally, and in accordance with each Indemnifying Securityholder Applicable Indemnification Portion, from and against any Losses incurred on the part of the Securityholders Representative and arising out of or in connection with the acceptance or administration of its duties hereunder. Without limiting the generality of the foregoing, the Securityholders’ Securityholders Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement on behalf of all Indemnifying Securityholders and the Escrow Agreement their respective heirs, successors and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholderassigns.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo This power of attorney granted by each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or Seller to the Escrow Agreement Securityholders Representative is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated or affected by subsequent disability or incapacity of any Seller or by any act of any Seller or by operation of law, whether by such person’s death, disability, protective supervision or any other event. Each Seller shall be deemed to have waived any and all defenses that may be available to contest, negate or disaffirm the action of the Securityholders Representative taken in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising good faith under this Agreement or any document or agreement delivered in connection herewith. Notwithstanding the Escrow Agreement;power of attorney granted in this Section 12.15, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Seller (instead of the Securityholders Representative) having signed or given the same directly.
(iic) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or Notwithstanding anything to the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contrary contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, agreement executed in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of connection with the transactions contemplated by this Agreement Agreement: (i) Buyer shall be entitled to deal exclusively with Securityholders Representative on all matters including, but not limited to, matters relating to any claim for indemnification, compensation or reimbursement hereunder; and the Escrow (ii) Buyer 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 Sellers by Securityholders Representative, and on any other action taken or purported to be taken on behalf of Sellers by Securityholders Representative, as fully binding upon Sellers. A decision, act, consent or instruction of Securityholders Representative, including an amendment, extension, waiver or termination of this Agreement, includingshall constitute a decision of Sellers and shall be final, without limitationbinding and conclusive upon Sellers; and Buyer may rely upon any such decision, act, consent or instruction of Securityholders Representative as being the defense and/or settlement decision, act, consent or instruction of Sellers. Buyer is hereby relieved from any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders any Person for any acts done by it in accordance with respect to any action takensuch decision, decision made act, consent or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreementof Securityholders Representative.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Intrexon Corp)
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 8.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent Parent, Buyer and its their respective agents regarding such claims, dealing with Parent Parent, Buyer and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying SecurityholdersSellers, Parent and MergerCo Buyer each hereby authorizes authorize the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective TimeClosing, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo and Buyer contained in this Agreement or in any document delivered by Parent or MergerCo Buyer pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their her capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X VIII and any waiver of any obligation of Parent or the Surviving CompanyBuyer.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders Sellers or liability to the Indemnifying Securityholders Sellers with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
(d) The Securityholders’ Representative shall be indemnified for and shall be held harmless against any loss, liability or expense incurred by the Securityholders’ Representative or any of her Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to such Securityholders’ Representative’s conduct as Securityholders’ Representative, other than losses, liabilities or expenses resulting from such Securityholders’ Representative’s willful misconduct in connection with its performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid by the Stockholders. The Securityholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Securityholders’ Representative in accordance with such advice, the Securityholders’ Representative shall not be liable to the Sellers or the Escrow Agent or any other person. In no event shall the Securityholders’ Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Escrow Amount.
(e) The Securityholders’ Representative shall have reasonable access to information of and concerning any Indemnity Claim and which is in the possession, custody or control of Parent or Buyer and the reasonable assistance of Parent’s and Buyer’s officers and employees for purposes of performing the Securityholders’ Representative’s duties under this Agreement or the Escrow Agreement and exercising its rights under this Agreement and the Escrow Agreement, including for the purpose of evaluating any Indemnity Claim against the Escrow Fund by Parent or Buyer; provided that the Securityholders’ Representative shall treat confidentially and not, except in connection with enforcing its rights under this Agreement and the Escrow Agreement, disclose any nonpublic information from or concerning any Indemnity Claim to anyone (except to the Securityholders’ Representative’s attorneys, accountants or other advisers, to Sellers and on a need-to-know basis to other individuals who agree to keep such information confidential).
(f) In the performance of her duties hereunder, the Securityholders’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Seller, any Stockholder or any party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Brightcove Inc)
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power and authority to take all actions under By approving this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the by executing and delivering a Letter of Transmittal, each Securityholder shall have irrevocably authorized and appointed Securityholders’ Representative may as such Securityholder’s representative and attorney-in-fact to act on behalf of such Securityholder with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Securityholders’ Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in his or her sole discretion deem appropriateSection 2.16;
(iii) After the Effective Timeagree to, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in negotiate, enter into settlements and compromises of, and comply with orders of courts with respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered to claims for indemnification made by Parent pursuant to Article VIII;
(iv) litigate, arbitrate, resolve, settle or MergerCo compromise any claim for indemnification pursuant hereto; to Article VIII;
(Bv) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving execute and deliver all documents necessary or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary desirable to carry out the intent of this Agreement and any of the transactions Ancillary Document, and make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vi) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Securityholders’ Representative in complying with its duties and obligations; and
(vii) take all actions necessary or appropriate in the Escrow Agreementgood faith judgment of Securityholders’ Representative for the accomplishment of the foregoing. Parent shall be entitled to deal exclusively with Securityholders’ Representative on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Securityholder by Securityholders’ Representative, includingand on any other action taken or purported to be taken on behalf of any Securityholders by Securityholders’ Representative, without limitationas being fully binding upon such Securityholder. Notices or communications to or from Securityholders’ Representative shall constitute notice to or from each of Securityholders. Any decision or action by Securityholders’ Representative hereunder, including any agreement between Securityholders’ Representative and Parent relating to the defense and/or defense, payment or settlement of any claims for which indemnification is sought pursuant hereunder, shall constitute a decision or action of all Securityholders and shall be final, binding and conclusive upon each such Securityholder and will not be subject to judicial, arbitral or any other form of review. No Securityholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Article X Section 10.1(a), including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any waiver act of any obligation one or more Securityholders or by operation of Parent Law.
(b) Securityholders’ Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of Securityholders according to each Securityholder’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Securityholders’ Representative resign or be removed without the Majority Holders having first appointed a new Securityholders’ Representative who shall assume such duties immediately upon the resignation or removal of Securityholders’ Representative. In the event of the death, incapacity, resignation or removal of Securityholders’ Representative, a new Securityholders’ Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Securityholders’ Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and the Surviving CompanyCorporation shall be entitled to rely on the decisions and actions of the prior Securityholders’ Representative as described in Section 10.1(a).
(c) Securityholders’ Representative shall not be liable to Securityholders for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Securityholders’ Representative shall be conclusive evidence of good faith). Securityholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Securityholders’ Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Securityholders’ Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Securityholders’ Representative, Securityholders’ Representative shall reimburse Securityholders the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied, first, from the Securityholders’ Representative Fund and, second, to the extent the amount of the Representative Losses exceeds amounts available to Securityholders’ Representative under the Securityholders’ Representative Fund, from Securityholders, severally and not jointly (in accordance with their Pro Rata Shares). As soon as practicable after the date on which the final obligation of Securityholders’ Representative under this Agreement have been discharged or such other date as Securityholders’ Representative deems appropriate, Securityholders’ Representative shall pay any amounts remaining in the Securityholders’ Representative Fund to Securityholders (in accordance with their Pro Rata Shares).
(d) The Securityholders’ Representative Fund shall be held by Securityholders’ Representative as agent and for the benefit of Securityholders in a segregated client account and it shall be used for the purposes of paying directly, or reimbursing Securityholders’ Representative for, any costs and expenses of Securityholders’ Representative incurred pursuant to this Agreement. Securityholders’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Securityholders’ Representative is not providing any investment supervision, recommendations or advice. Securityholders’ Representative shall have no duties to the Indemnifying Securityholders responsibility or liability to the Indemnifying Securityholders with respect to for any action taken, decision made or instruction given by loss of principal of the Securityholders’ Representative Fund other than as a result of its gross negligence or willful misconduct. Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Escrow Agreement Securityholders’ Representative Fund, and has no tax reporting or this Agreementincome distribution obligations hereunder. As soon as reasonably determined by Securityholders’ Representative that the Securityholders’ Representative Fund is no longer required to be withheld, Securityholders’ Representative shall distribute the remaining amounts in the Securityholders’ Representative Fund, if any, to Paying Agent for further distribution to Securityholders.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Quality Systems, Inc)
Securityholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense or settlement of any claims for which Stockholders, Optionholders and Warrantholders may be required to indemnify any Indemnitee pursuant to Article 12 hereof, REP is hereby designated as the sole representative of the Securityholders (the “Securityholders’ Representative”).
(b) Securityholders’ Representative is authorized and directed (i) to take all action after the Effective Time necessary in connection with the transactions contemplated hereby in the case of all Securityholders, or the defense or settlement of any claims for which Stockholders, Optionholders and Warrantholders may be required to indemnify EFX or the Surviving Corporation pursuant to Article 12 hereof in the case of the Stockholders, the Optionholders and the Warrantholders, (ii) to give and receive all notices required to be given under this Agreement after the Effective Time in the case of all Securityholders, and (iii) to take any and all action after the Effective Time as is contemplated to be taken by or on behalf of the Securityholders by the terms of this Agreement.
(c) In the event that the Securityholders’ Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Securityholders owning or having the right to acquire, prior to the Closing, a majority of the Outstanding Company Shares are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Securityholders’ Representative, including any agreement between the Securityholders’ Representative and EFX relating to the defense or settlement of any claims for which Securityholders may be required to indemnify any of the EFX Indemnitees pursuant to Article 12 hereof, shall be binding upon all of Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Securityholders’ Representative shall not have full power any liability to EFX or the Surviving Corporation pursuant to any action taken or omitted by it in its capacity as the Securityholders’ Representative while acting in good faith and authority without gross negligence, and any act done or omitted pursuant to take all actions under this Agreement the advice of counsel shall be conclusive evidence of such good faith.
(f) The Securityholders’ Representative Fund shall be available to indemnify and hold the Escrow Agreement that are to be taken Securityholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Securityholders’ Representative. The Representative without gross negligence or bad faith on the part of the Securityholders’ Representative shall take any and all actions which he arising out of or she believes are necessary in connection with the acceptance or appropriate administration of his duties under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as . The Securityholders’ Representative, giving and receiving Representative shall be entitled to advancement of and/or to recover any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees costs and expenses and other obligations of reasonably incurred or to be incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated taken by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority pursuant to interpret all the terms and provisions of this Agreement and the Escrow Agreement (including the hiring of legal counsel and to consent to financial, tax or accounting advisors and the incurring of any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, fees and costs related thereto) from the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder Fund, without the prior written requirement of any consent of such Securityholderor approval by EFX.
(bg) The Company, In addition to the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative toforegoing:
(i) Receive all notices or documents given or EFX shall be entitled to be given to rely conclusively on the instructions and decisions of the Securityholders’ Representative pursuant hereto or as to the Escrow Agreement settlement of any claims for indemnification by any of the Indemnitees pursuant to Article 12 hereof, or any other actions required or permitted to be taken by the Securityholders’ Representative hereunder, and no party hereunder shall have any cause of action against EFX for any action taken by EFX in connection herewith reliance upon the instructions or therewith and to receive and accept services decisions of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow AgreementSecurityholders’ Representative;
(ii) Engage counselall actions, decisions and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as instructions of the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action as against the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, except for gross negligence or bad faith by the Securityholders’ Representative in connection with the Escrow Agreement matters described in this Section 4.7;
(iii) the provisions of this Section 4.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 4.7 are inadequate; therefore, EFX shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages if EFX brings an action to enforce the provisions of this Section 4.7; and
(v) the provisions of this Section 4.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Equifax Inc)
Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in this Agreement (including 1.9 (Milestone Consideration), Sections 1.13 (Exchange/Payment), 1.14 (Post-Closing Adjustment), 5.5(a) (Transfer Taxes), 8 (Indemnification) and 10.1 (Amendment)) and any related agreements, the Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement or the completion and execution of the Letters of Transmittal shall be deemed to have designated Shareholder Representative Services LLC as the representative, agent and attorney-in-fact of the Securityholders (the “Securityholders’ Representative”) as of the Closing.
(b) The Securityholders’ Representative may resign at any time and the Securityholders’ Representative may be removed by the vote of Persons which collectively owned a majority of the Company Capital Stock immediately prior to the Effective Time (or, in the case of a termination of this Agreement, as of such termination (the “Majority Holders”)). In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder, has been removed by the Majority Holders or resigns from such position, the Majority Holders shall have full power be authorized to and authority shall select another representative to take fill such vacancy and, upon the written acceptance thereof by such representative, such substituted representative shall be deemed to be the Securityholders’ Representative for all actions under purposes of this Agreement and the Escrow documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement that are or the delivery of the Letter of Transmittal and/or Joinder Agreement, as applicable, contemplated by Section 1.13 (Exchange/Payment), the Securityholders shall be deemed to be taken by have agreed, in addition to the foregoing, that:
(i) the Securityholders’ RepresentativeRepresentative shall be appointed and constitute the exclusive agent and true and lawful attorney-in-fact of each Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement and the agreements ancillary hereto. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement ▇▇▇▇▇▇ accepts such appointment as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 Closing;
(an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without ii) without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret (A) execute, deliver, acknowledge, certify and file on behalf of the Securityholders (in the name of any or all of the terms Securityholders or otherwise) any and provisions of this Agreement and all documents, including the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; providedAgreement, however, that the Securityholders’ Representative may not consent may, in its sole discretion, determine to any amendment of this Agreement be necessary, desirable or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of appropriate, in such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent forms and MergerCo each hereby authorizes containing such provisions as the Securityholders’ Representative to:
(i) Receive all notices or documents given or may, in its sole discretion, determine to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith appropriate, (B) give and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants notices and other advisors and incur such other expenses in connection with communications relating to this Agreement or the Escrow Agreement and the transactions contemplated hereby (except to the extent that this Agreement contemplates that such notice or thereby as communication shall be given or received by the Securityholder individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby, including the payment of any Adjustment Amount pursuant to Section 1.14 (Post-Closing Adjustment) and the payment of any amounts in satisfaction of any claims for indemnification made by Parent pursuant to Section 8 (Indemnification), and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After for the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any accomplishment of the transactions contemplated by this Agreement and foregoing; provided, however, that the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule;
(iii) Parent shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on the instructions and decisions given or made by the Securityholders’ Representative as to any of the matters described in this Section 1.16 (Securityholders’ Representative), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iv) all actions, decisions and instructions of the Securityholders’ Representative shall be conclusive and binding upon each of the Securityholders, and no Securityholders shall have any cause of action against the Securityholders’ Representative;
(v) the provisions of this Section 1.16 (Securityholders’ Representative) and the powers, immunities and rights to indemnification granted to the Indemnifying Securityholders’ Representative Group hereunder: (A) are independent and severable, are irrevocable and coupled with an interest, and shall survive the death, incompetence, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto; and (B) shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated by this Agreement;
(vi) all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Securityholders’ Representative Engagement Agreement are waived;
(vii) the Securityholders’ Representative shall be entitled to: (A) rely upon the Closing Payment Schedule, (B) rely upon any signature believed by it to be genuine, and (C) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party; and
(viii) the provisions of this Section 1.16 (Securityholders’ Representative) shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Securityholder, and any references in this Agreement to a Securityholder or the Securityholders or liability shall mean and include the successors to the Indemnifying Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) On the Closing Date and following the filing of the Merger Filing with, and acceptance by, the Delaware Secretary of State, Parent shall cause to be deposited, in accounts designated by the Securityholders’ Representative, (i) $[***] (the “Securityholders’ Representative Reserve”) plus (ii) the upfront engagement fee of the Securityholders’ Representative. The Securityholders’ Representative Reserve will be used for any expenses incurred by the Securityholders’ Representative. The Participating Securityholders will not receive any interest or earnings on the Securityholders’ Representative Reserve and irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholders’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholders’ Representative’s responsibilities, the Securityholders’ Representative will deliver any remaining balance of the Securityholders’ Representative Reserve to the Paying Agent for further distribution to the Participating Securityholders. Prior to any such distribution of the Securityholders’ Representative Reserve, the Securityholders’ Representative shall deliver to Parent and the Paying Agent an updated Closing Payment Schedule (which need not be certified) setting forth the portion of the Securityholders’ Representative Reserve payable to each Participating Securityholder. Any applicable Taxes required to be withheld pursuant to Section 1.13(f) (Required Withholding) with respect to any action takensuch distribution of the Securityholders’ Representative Reserve may be withheld in accordance therewith. For U.S. federal and applicable state and local income Tax purposes, decision made or instruction given the Securityholders’ Representative Reserve will be treated as having been received and voluntarily set aside by the Participating Securityholders at the time of Closing.
(e) Certain Participating Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement, any related agreements and the Escrow Securityholders’ Representative Engagement Agreement (such Participating Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”) will incur any liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its Fraud, bad faith, gross negligence or willful misconduct. The Securityholders’ Representative Group shall not be liable for any action or omission pursuant to the advice of counsel. The preceding two sentences shall not prejudice the Securityholders’ Representative’s right to indemnification from the Advisory Group (in their capacity as Participating Securityholders) pursuant to the following sentence. The Participating Securityholders shall indemnify the Securityholders’ Representative Group against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Securityholders’ Representative Expenses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Securityholders’ Representative Expense is suffered or incurred; provided that in the event that any such Securityholders’ Representative Expense is finally adjudicated to have been caused by the Fraud, bad faith, gross negligence or willful misconduct of the Securityholder Representative or the Advisory Group, the Securityholders’ Representative or the Advisory Group, as applicable, will reimburse the Participating Securityholders the amount of such indemnified Securityholders’ Representative Expense to the extent attributable to such Fraud, bad faith, gross negligence or willful misconduct. Securityholders’ Representative Expenses may be recovered by the Securityholders’ Representative from (i) the funds in the Securityholders’ Representative Reserve and (ii) any other funds that become payable to the Participating Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Participating Securityholders; provided that while the Securityholders’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Participating Securityholders from their obligation to promptly pay such Securityholders’ Representative Expenses as they are suffered or incurred. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Participating Securityholders or otherwise. 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 Participating Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholders’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Bionano Genomics, Inc.)
Securityholders’ Representative. (a) By virtue of the approval of the Merger and this Agreement by the Indemnifying Parties and/or entering into a Joinder Agreement, each of the Indemnifying Parties shall be deemed to have agreed to appoint ▇▇▇▇ ▇▇▇▇▇▇ as its agent and attorney-in-fact as the Securityholders’ Representative for and on behalf of the Indemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing, or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Securityholders’ Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. Notwithstanding the foregoing, a vacancy in the position of Securityholders’ Representative may be filled by the holders of two-thirds in interest of the Escrow Fund. No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative shall not receive any compensation for its services. Notices or communications to or from the Securityholders’ Representative shall constitute notice to or from the Indemnifying Parties.
(b) The Securityholders’ Representative shall have full power not be liable for any act done or omitted hereunder as Securityholders’ Representative while acting in good faith and authority to take all actions under this Agreement and in the exercise of reasonable judgment. The Indemnifying Parties on whose behalf the Escrow Agreement that are Amount was contributed to be taken by the Escrow Fund shall indemnify the Securityholders’ Representative and hold the Securityholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and ’s duties hereunder, including the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket reasonable fees and expenses and other obligations of or incurred any legal counsel retained by the Securityholders’ Representative in connection with this Agreement or (“Securityholders’ Representative Expenses”). Following the termination of the Escrow AgreementPeriod, defending the resolution of all Unresolved Claims and the satisfaction of all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated made by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoingIndemnified Parties for Losses, the Securityholders’ Representative shall have the full power and authority right to interpret all the terms and provisions of this Agreement and recover Securityholders’ Representative Expenses from the Escrow Agreement and to consent Fund prior to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provideddistribution to the Indemnifying Parties, howeverand prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Securityholders’ Representative may not Expenses actually incurred. A decision, act, consent to any amendment or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement or pursuant to Section 8.3 and Section 8.4, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties; and the Escrow Agreement that would increase the liability Agent and Parent may rely upon any such decision, act, consent or instruction of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices as being the decision, act, consent or documents given instruction of the Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services instruction of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 1 contract
Securityholders’ Representative. (a) Each Securityholder, pursuant to the terms of the Letter of Transmittal to be entered into by such Securityholder, has designated and appointed North Bridge and ▇▇▇▇▇▇ ▇▇▇▇, jointly as the Securityholders’ Representative and as exclusive agent and attorney-in-fact for and on behalf of each Securityholder, with full power and authority in each of the Securityholders’ names, to give and receive notices and communications, to agree to, negotiate and enter into, on behalf of each such Securityholder, amendments, consents and waivers under this Agreement or any Valence Closing Document pursuant to the terms set forth herein and therein, to make and receive payments on behalf of the Securityholder pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, including actions in connection with the determination of the Final Adjustment Amount pursuant to Section 2.11 hereof and the Earnout Amount, the defense and/or settlement of any indemnification claims of any Evolent Indemnified Person pursuant to Article IX, to take all actions authorized by the Escrow Agreement, including defending or settling any claims thereunder and releasing and transferring any of the Escrow Fund to Evolent in accordance with the terms set forth therein, and all actions necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; provided, however, that the Securityholders’ Representative shall have no obligation to act, except as expressly provided herein. All such actions of the Securityholders’ Representative shall be binding on the Securityholders as if expressly confirmed and ratified in writing by each of them, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same. Such agency may be changed by a vote or written consent by the holders of a majority of the Shares on an as-converted basis as of the Closing Date, voting in the same manner as would have been voted in accordance with the Organizational Documents of Valence Parent as in effect immediately prior to the Closing Date (the “Majority Holders”), from time to time upon not less than ten (10) days’ prior written notice to Evolent. If at any time the Securityholders’ Representative resigns, dies or becomes incapable of acting, the Majority Holders shall appoint another Person to act as the Securityholders’ Representative under this Agreement and immediately thereafter notify Evolent of the identity of such successor. Each successor Securityholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholders’ Representative, and the term “Securityholders’ Representative” as used herein shall be deemed to include any interim or successor Securityholders’ Representative. The Securityholders may not make a claim for indemnity against Evolent pursuant to this Agreement except through the Securityholders’ Representative, who shall make such a claim only upon the written direction of the Majority Holders. The Securityholders’ Representative shall have full power reasonable access to relevant information about Valence Parent and authority a reasonable opportunity to take consult with employees of Valence Parent solely for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Representative shall treat confidentially and not disclose any nonpublic information from or about Valence Parent to anyone except on a need to know basis to individuals who agree to treat such information confidentially.
(b) Once the Securityholders’ Representative has initiated a claim for indemnity, all actions under this Agreement acts and decisions of the Securityholders’ Representative in connection with such matter shall be binding on all of the Securityholders. No bond shall be required of the Securityholders’ Representative, and the Escrow Agreement Securityholders’ Representative shall receive no compensation for services provided hereunder. Notices or communications to or from the Securityholders’ Representative shall constitute notice to or from each of the Securityholders.
(c) The Securityholders’ Representative will be entitled to engage such counsel, experts and other agents as the Securityholders’ Representative deems necessary or proper in connection with performing the Securityholders’ Representative’s obligations hereunder, and will be promptly reimbursed by the Securityholders for all reasonable expenses, disbursements and advances incurred by the Securityholders’ Representative in such capacity upon demand. The Securityholders shall severally indemnify and hold harmless the Securityholders’ Representative with respect to any and all Damages that are incurred by the Securityholders’ Representative as a result of actions taken, or actions not taken, by the Securityholders’ Representative hereunder, except to be taken by the extent that such Damages arise from the gross negligence or willful misconduct of the Securityholders’ Representative. The Securityholders’ Representative shall take not be liable to the Securityholders for any act done or omitted hereunder as Securityholders’ Representative, excluding acts which constitute gross negligence or willful misconduct.
(d) The Securityholders’ Representative shall be entitled to withdraw cash amounts held in the Securityholders’ Representative Expense Fund for the reimbursement of out of pocket fees and all actions which he or she believes are necessary or appropriate expenses (including legal, accounting, and other advisors’ fees and expenses, if applicable) incurred by the Securityholders’ Representative in performing under this Agreement and the Escrow Agreementother Transaction Documents contemplated hereby. The Securityholders’ Representative Expense Fund shall be held by the Securityholders’ Representative in a segregated client bank account. The Securityholders shall earn no interest on the Securityholders’ Representative Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative is not providing any investment supervision, includingrecommendations, without limitationor advice. The Securityholders’ Representative shall have no responsibility or liability for any loss of principal of the Securityholders’ Representative Expense Fund other than as a result of its gross negligence or willful misconduct. Any and all amounts in the Securityholders’ Representative Expense Fund shall otherwise remain in the Securityholders’ Representative Expense Fund until the date that is eighteen (18) months following the Closing Date (or such longer time as a claim made during the applicable survival period remains outstanding). After such time, executing the Securityholders’ Representative shall distribute any remaining portion of the Securityholders’ Representative Expense Fund to the Securityholders based on such Securityholders’ pro rata portion of the Securityholders’ Representative Expense Fund as set forth in the Waterfall. In the event the fees and expenses incurred by the Securityholders’ Representative in performing its duties under this Agreement and the other Transaction Documents contemplated hereby exceed the Securityholders’ Representative Expense Fund, the excess amount shall be the responsibility of the Securityholders, pro rata based on each Securityholder’s respective share of the Total Merger Consideration as set forth in the Waterfall, pursuant to this Section 10.12 (which, to the extent of any funds from the Escrow Agreement as Fund released to the Securityholders’ Representative, giving shall first be paid from such released funds). For Tax purposes, the Securityholders’ Representative Expense Fund shall be treated as having been received and receiving voluntarily set aside by the Securityholders at the Closing.
(e) This appointment and grant of power and authority is binding upon the Securityholders and their respective executors, heirs, legal representatives and successors and is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any notice act of any of the Securityholders (except as otherwise provided herein) or by operation of law, whether by the death or incapacity of any Securityholders or by the occurrence of any other event. Each Securityholder hereby renounces his, her or its right to renounce this power of attorney unilaterally before the complete distribution of the Merger Consideration, the Escrowed Consideration and the Earnout Amount (if any). Each Securityholder hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement. A decision, act, consent or instruction permitted or required of the Securityholders’ Representative in respect of any action under this Agreement or the Escrow Agreement shall constitute a decision of all of the Securityholders, shall be final, binding and conclusive upon the Securityholders, and the Evolent Entities may rely upon any decision, act, consent or instruction of the Securityholders’ Representative hereunder as being the decision, act, consent or instruction of each and every such Securityholder. The Evolent Entities shall be able to rely conclusively on the proper distribution of such amounts by the Securityholders’ Representative among the Securityholders upon receipt by the Securityholders’ Representative of such amounts. The Evolent Entities are hereby relieved from any liability to any Person (including any Securityholders) for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative, interpreting all of to the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments extent delegated to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection hereunder.
(f) The provisions of this Section 10.12 are independent and severable, are irrevocable and coupled with this Agreement an interest and shall be enforceable notwithstanding any rights or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking remedies that any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives Person may have in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Companyhereby.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 1 contract
Securityholders’ Representative. (a) The Carl Goldfischer shall be the Company Indemnifying Parties' and the Co▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇d Parties' representative (the "Securityholders’ ' Representative") and, as such, shall serve as and have all powers as agent and attorney-in-fact of each Company Indemnifying Party or Company Indemnified Party, as the case may be, for and on behalf of each Company Indemnifying Party or Company Indemnified Party, as the case may be: (i) to give and receive notices and communications with respect to any matters related to this Agreement for which the Securityholders' Representative shall have full power is authorized to act; (ii) to authorize delivery of cash from the Indemnification Escrow Fund to a Parent Indemnified Party; (iii) to negotiate, enter into settlements and authority compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to any claim for indemnification pursuant to this Article 8; (iv) to litigate, mediate, arbitrate, defend, enforce or take all any other actions and execute the Indemnification Escrow Agreement and any other documents that the Securityholders' Representative deems advisable in connection with enforcing any rights or obligations or defending any claim or action under this Agreement on behalf of the Company Indemnifying Parties and the Escrow Agreement that are Company Indemnified Parties; (v) to be taken by sign receipts, consents or other documents in connection with the Securityholders’ ' Representative. The Securityholders’ Representative shall 's duties hereunder; and (vi) to take any and all actions which he or she believes are necessary or appropriate in the judgment of the Securityholders' Representative for the accomplishment of the foregoing. If Carl Goldfischer ceases to act as the Securityholders' Representative ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Steven A. Elms shall be appointed as the Securityholders' Representati▇▇. ▇▇ ▇▇▇▇▇▇ A. Elms ceases to act as the Securityholders' Representative fo▇ ▇▇▇ ▇▇▇▇▇▇, such Securityholders' Representative or his agent shall notify Parent of such Securityholders' Representative's intent to resign as Securityholders' Representative, and the Securityholders entitled to receive a majority of the Total Merger Consideration (determined as of the date hereof) (a "Majority") shall, by written notice to Parent, appoint a successor Securityholders' Representative within thirty (30) calendar days. Notice or communications to or from the Securityholders' Representative shall constitute notice to or from the Company Indemnifying Parties and the Company Indemnified Parties. All actions to be taken by a Company Indemnified Party or Company Indemnifying Party, as the case may be, shall be taken solely by the Securityholders' Representative.
(b) Subject to Section 8.6(a), in the event of (i) the death or permanent disability of the Securityholders' Representative, (ii) the Securityholders' Representative's resignation as a Securityholders' Representative, or (iii) the removal of the Securityholders' Representative by a Majority, a successor Securityholders' Representative shall be elected by a Majority. Each successor Securityholders' Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholders' Representative, and the term "Securityholders' Representative" as used herein shall be deemed to include any successor Securityholders' Representative.
(c) In the event information with respect to a Company Indemnifying Party set forth in Exhibit B to the Indemnification Escrow Agreement becomes outdated or inaccurate, such Company Indemnifying Party shall promptly notify the Securityholders' Representative of such inaccuracy and provide the appropriate updated and accurate information to the Securityholders' Representative.
(d) The Securityholders' Representative may, in all questions arising under this Agreement, rely on the advice of counsel, and shall not be liable to any Company Indemnifying Party or Company Indemnified Party for any action taken or not taken as a Securityholders' Representative in the absence of such Securityholders' Representative's willful misconduct or bad faith.
(e) A decision, act, consent or instruction of the Securityholders' Representative shall constitute a decision of the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be, and shall be final, binding and conclusive upon the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be. The Escrow Agent and any Parent Indemnified Party may rely upon any decision, act, consent or instruction of the Securityholders' Representative as being the decision, act, consent or instruction of the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be. Although the Securityholders' Representative shall not be obligated to obtain instructions from the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be, prior to any decision, act, consent or instruction, if, and to the extent that, the Securityholders' Representative receives any written instructions from a Majority, the Securityholders' Representative shall comply with such instructions.
(f) The Company Indemnifying Parties shall severally in proportion to their Pro Rata Portion (and not jointly), indemnify and defend the Securityholders' Representative and hold the Securityholders' Representative harmless against any loss, damage, cost, liability or expense incurred without willful misconduct or bad faith by the Securityholders' Representative and arising out of or in connection with the acceptance, performance or administration of the Securityholders' Representative's duties under this Agreement, the Indemnification Escrow Agreement or the Expenses Escrow Agreement, including the reasonable fees and expenses of any legal counsel, accountants, auditors and other advisors retained by the Securityholders' Representative in performing his or her obligations under this Agreement, the Indemnification Escrow Agreement and the Escrow Agreement, including, without limitation, executing the Expenses Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement obligations incurred by the Securityholders’ Representative' Representative in the satisfaction of his duties under this Agreement, interpreting all of the terms and provisions of this Indemnification Escrow Agreement and the Expenses Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all . Any out-of-pocket fees costs and expenses and other obligations of incurred by or reasonably expected to be incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ ' Representative in connection with the acceptance, performance and administration of his or her duties as Securityholders' Representative pursuant to this Agreement, the Indemnification Escrow Agreement and the Expenses Escrow Agreement (including the hiring of legal counsel, accountants or auditors and other advisors pursuant to the terms of this Agreement and any amounts paid by the Securityholders' Representative to indemnify the Escrow Agent pursuant to the Indemnification Escrow Agreement or the Expenses Escrow Agreement), except those costs and expenses which Parent is obligated to pay pursuant to the terms of this Agreement, the Indemnification Escrow Agreement and the Expenses Escrow Agreement ("Securityholders' Representative's Costs"), shall be paid by the Company Indemnifying Parties in accordance with each Company Indemnifying Party's Pro Rata Portion of such Securityholders' Representative's Costs as follows: (i) first by recourse to the Expenses Escrow Amount then held in the Expenses Escrow Fund and (ii) if such Expenses Escrow Amount is insufficient to pay for such Securityholders' Representative's Costs, then by recourse directly to each Company Indemnifying Party. Parent and the Company each acknowledge and agree that the Expenses Escrow Amount shall be used to pay such Securityholders' Representative's Costs. Each of the Company Indemnifying Parties, by voting in favor of the Merger, acknowledges and agrees that such Company Indemnifying Party has authorized and approved the use of the Expenses Escrow Amount to pay Securityholders' Representative's Costs and, to the extent that the Expenses Escrow Amount is insufficient to pay for such Securityholders' Representative's Costs, to pay such costs directly or reimburse the Securityholders' Representative for such costs.
(g) The power of attorney granted by the Company Indemnifying Parties and the Company Indemnified Parties to the Securityholders' Representative pursuant to this Section 8.6 is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Indemnifying Party or Company Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Allergan Inc)
Securityholders’ Representative. (a) The Company, by the execution and delivery of this Agreement, and each Company Securityholder, by the execution and delivery of any Letter of Transmittal, any Option Termination Agreement or any Warrant Termination Agreement hereby irrevocably constitutes and appoints Shareholder Representative Services LLC as the sole, exclusive, true and lawful agent and attorney-in-fact of each Company Securityholder (the “Securityholders’ Representative”), with full power of substitution to act in such Company Securityholder’s name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement or the Escrow Agreement, and to act on such Company Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the Securityholders’ Representative deems necessary or appropriate in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including, without limitation, the power:
(i) to waive any condition to the obligations of such Company Securityholder to consummate the transactions contemplated by this Agreement;
(ii) to execute and deliver all ancillary agreements, certificates and documents on behalf of such Company Securityholder which the Securityholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Escrow Agreement; and
(iii) to do or refrain from doing any further act or deed on behalf of such Company Securityholder as is assigned, delegated or charged to the Securityholders’ Representative or which the Securityholders’ Representative otherwise deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement, as fully and completely as such Company Securityholder could do if personally present. All such actions set forth or described in this Section 1.13(a) are deemed to be facts ascertainable outside this Agreement and are binding on the Company Securityholders.
(b) The appointment of the Securityholders’ Representative is deemed coupled with an interest and is irrevocable, and Parent, its Affiliates, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholders’ Representative on behalf of the Company Securityholders in all matters referred to herein. All notices delivered by Parent or the Company (following the Closing) to the Securityholders’ Representative (whether pursuant hereto or otherwise) for the benefit of the Company Securityholders shall constitute notice to the Company Securityholders. The Securityholders’ Representative shall act for the Company Securityholders on all of the matters set forth in this Agreement in the manner the Securityholders’ Representative believes to be in the best interest of the Company Securityholders as a whole and consistent with its obligations under this Agreement, but the Securityholders’ Representative is not liable or responsible to the Company Securityholders for any loss or damages it or they may suffer by reason of the performance by the Securityholders’ Representative of its duties under this Agreement, other than loss or damage arising from fraud by or gross negligence of the Securityholders’ Representative.
(c) If the Securityholders’ Representative resigns or is otherwise similarly unable to carry out its duties hereunder, then the Company Securityholders with an aggregate Pro Rata Portion of 51% (the “Requisite Company Securityholders”) shall within five Business Days appoint a new Securityholders’ Representative. The Requisite Company Securityholders may at any time, for any reason or no reason, remove the Securityholders’ Representative. If at any time there is not a Securityholders’ Representative and the Company Securityholders fail to designate in writing a successor Securityholders’ Representative within five Business Days after receipt of a written request delivered by Parent to the Requisite Company Securityholders requesting that a successor Securityholders’ Representative be designated in writing, then Parent may petition a court of competent jurisdiction to appoint a new Securityholders’ Representative hereunder.
(d) All actions, decisions and instructions of the Securityholders’ Representative taken, made or given pursuant to the authority granted to the Securityholders’ Representative pursuant to this Section 1.13 is conclusive and binding upon each Company Securityholder, and no Company Securityholder may object, dissent, protest, or otherwise contest the same. The Company, by the execution and delivery of this Agreement, each Company Stockholder, by the execution and delivery of any Letter of Transmittal, each Cashed-Out Optionholder, by the execution and delivery of any Option Termination Agreement, each Company Warrantholder, by the execution and delivery of any Warrant Termination Agreement, as applicable, is deemed to have approved, confirmed and ratified any action taken by the Securityholders’ Representative in the exercise of the power-of-attorney granted to the Securityholders’ Representative pursuant to this Section 1.13, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of each such Company Securityholder.
(e) The Securityholders’ Representative shall have full power and authority is not liable to take all actions under this Agreement and the Escrow Agreement that are to be taken Company Securityholders for any act done or omitted hereunder in its capacity as the Securityholders’ Representative unless caused by fraud by or gross negligence of the Securityholders’ Representative. The Securityholders’ Representative shall take not have any fiduciary, agency or other duties to the Company Securityholders and its only obligations are as expressly set forth in this Agreement. The Securityholders’ Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company Securityholders hereunder, and Parent, the Company and the Surviving Corporation agree that they will not look to the underlying assets of the Securityholders’ Representative for the satisfaction of any obligations of the Company or the Company Securityholders (or any of them). The Company Securityholders shall jointly, in accordance with their respective Pro Rata Portion, indemnify and defend the Securityholders’ Representative and hold the Securityholders’ Representative on demand harmless against any and all actions which he or she believes are necessary or appropriate under this Agreement losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses of counsel and other obligations experts and their staffs and all expense of or document location, duplication and shipment) (collectively, “Representative Losses”) incurred by the Securityholders’ Representative and arising out of or in connection with this Agreement the acceptance, performance or administration of the Securityholders’ Representative duties hereunder or under the Escrow Agreement, defending all claims arising pursuant 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 Section 3.5 have been directly caused by the gross negligence or fraud of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or fraud. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Securityholders’ Representative from (an “NWC Claim”)i) the funds in the Representative Fund, defending all indemnity claims against (ii) the amounts in the Escrow Amount pursuant Fund at such time as remaining amounts would otherwise be distributable to Section 9.2 the Company Securityholders, and (an “Indemnity Claim”)iii) from any Earnout Amounts at such time as any such amounts would otherwise be distributable to the Company Securityholders; provided, consenting tothat while this section allows the Securityholders’ Representative to be paid from the Representative Fund, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent the Escrow Fund and the Escrow Agent under Earnout Amounts, this Agreementdoes not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, taking nor does it prevent the Securityholders’ Representative from seeking any all other actions specified in remedies available to it at law or contemplated by this Agreement otherwise. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. The Company Securityholders acknowledge and agree that the foregoing indemnities shall survive the resignation or removal of the Securityholders’ Representative or the Escrow Agreement, termination of this agreement. The Securityholders’ Representative may retain its own counsel and engaging counsel, accountants or other representatives professional advisers at the expense of the Company Securityholders in connection with the foregoing matters. acceptance, performance or administration of the Securityholders’ Representative’s duties hereunder or under the Escrow Agreement or the exercise of any of the Securityholders’ Representative’s rights hereunder.
(f) Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power is authorized and authority empowered to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of establish such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby reserves as the Securityholders’ Representative may from time to time determine, in his its sole discretion, to be necessary and desirable in connection with the reasonable, out-of-pocket expenses and other costs to be borne by the Securityholders’ Representative or her sole discretion deem appropriate;the Company Securityholders hereunder, including the Representative Fund, and to pay such reserves from the Representative Fund or direct the Parent to make payment of such amounts from the Escrow Amount to be applied to such reserves in lieu of the payment to the Company Securityholders.
(iiig) After The Representative Fund Amount shall be maintained by the Representative Account for use by the Securityholders’ Representative in accordance with this Agreement. The Company Securityholders will not receive any interest or earnings on the Representative Fund Amount and irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholders’ Representative will not be liable for any loss of principal of the Representative Fund Amount other than as a result of its gross negligence, fraud or willful misconduct. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Any portion of the Representative Fund Amount remaining after (i) payment of all of the Securityholders’ Representative’s reasonable, out-of-pocket expenses following the resolution of all indemnification claims under Article VIII and resolution of all earn-out matters under Section 1.3(d) hereof and (ii) the determination by the Securityholders’ Representative that such funds are no longer necessary in connection with indemnification claims or earn-out matters that may be brought thereunder (such portion of the Representative Fund Amount, the “Remaining Representative Fund”) shall be delivered to the Paying Agent for distribution to the Company Securityholders in the amounts such Company Securityholders would receive if the Remaining Representative Fund were instead a portion of the Escrow Amount to be distributed to such Company Securityholders in accordance with the Escrow Agreement. The Securityholders’ Representative shall hold and disburse the Representative Fund Amount for the Company Securityholders, and the Representative Account shall not be used for any other purpose and shall not be available to the Parent or any other Indemnified Person to satisfy any claims hereunder.
(h) The provisions of this Section 1.13 are independent and severable, constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Company Securityholders to the Securityholders’ Representative, and are binding upon the executors, heirs, legal representatives, successors and assigns of each such Company Securityholder. As of the Effective Time, take such action the obligations of the Company (as the Surviving Corporation) with respect to the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreementshall terminate, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought power-of-attorney granted pursuant to this Article X and any waiver of any obligation of Parent or the Surviving CompanySection 1.13.
(ci) The Securityholders’ Representative shall have no duties Notwithstanding anything to the Indemnifying contrary in this Agreement, the parties hereto and the Company Securityholders or liability to the Indemnifying Securityholders with respect to any action takenacknowledge and agree that this Section 1.13 is governed by, decision made or instruction given by the Securityholders’ Representative construed and enforced in connection accordance with the Escrow Agreement or this Agreementlaws of the State of Delaware.
Appears in 1 contract
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company’s stockholders, each of the Escrow Participants (other than such Escrow Participants, if any, to the extent such Escrow Participant has properly asserted or exercised and perfected dissenters’ rights under the NRS and who have not effectively withdrawn or lost such dissenters’ rights) shall be deemed to have agreed to appoint Fortis Advisors LLC, a Delaware limited liability company as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Escrow Participants to give and receive notices and communications, to authorize payment to any Covered Party from the Escrow Fund in satisfaction of claims by any Covered Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Covered Party against any Escrow Participant or by any such Escrow Participant against any Covered Party or any dispute between any Covered Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement (it being understood that all such actions shall be deemed to be facts ascertainable outside this Agreement and be binding on the Escrow Participants as a matter of contract law). Such agency may be changed by the Escrow Participants with the right to a majority of the Pro Rata Portions of the Escrow Fund from time to time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Escrow Participants, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder’s Representative.
(b) The Securityholders’ Representative shall have full power and authority to take all actions not be liable for any act done or omitted hereunder or under this Agreement and the Escrow Agreement that are to be taken by as Securityholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of such Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under only have the duties expressly stated in this Agreement and the Escrow Agreementshall have no other duty, including, without limitation, executing the Escrow Agreement as express or implied. The Securityholders’ RepresentativeRepresentative may engage attorneys, giving accountants and receiving other professionals and experts. The Securityholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any notice or instruction permitted or required under this Agreement or the Escrow Agreement action taken by the Securityholders’ RepresentativeRepresentative based on such reliance shall be deemed conclusively to have been taken in good faith. The Escrow Participants shall indemnify the Securityholders’ Representative and hold the Securityholders’ Representative harmless against any loss, interpreting all liability or expense incurred on the part of the terms Securityholders’ Representative (so long as the Stockholder’s Representative was acting in good faith in connection therewith) and provisions arising out of this Agreement and or in connection with the Escrow Agreementacceptance or administration of the Securityholders’ Representative’s duties hereunder, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket including the reasonable fees and expenses of any legal counsel retained by the Securityholders’ Representative and other obligations of or travel expenses (“Securityholders’ Representative Expenses”). The Representative Reimbursement Fund shall be available to reimburse the Securityholders’ Representative Expenses actually incurred by the Securityholders’ Representative promptly following the Securityholders’ Representative delivery to the Escrow Agent of a certificate setting forth such Securityholders’ Representative Expenses actually incurred. Upon the Escrow Termination Date, the balance of the Representative Reimbursement Fund shall promptly be delivered to the Escrow Participants, except with respect to any amount necessary to satisfy any pending certified requests made by the Securityholders’ Representative for Securityholders’ Representative Expenses. As soon as all such Securityholders’ Representative Expenses have been properly paid, the Escrow Agent shall deliver the remaining portion of the Representative Reimbursement Amount to the Escrow Participants pursuant to Section 8.5. Deliveries from the Representative Reimbursement Fund to the Escrow Participants pursuant to this Section 8.7(b) and the Escrow Agreement shall be made in connection proportion to their respective Pro Rata Portion of the remaining Representative Reimbursement Amount, with each amount rounded to the nearest whole cent ($0.01). If the Representative Reimbursement Fund is insufficient to satisfy any Securityholders’ Representative Expenses, such amounts may be recovered by the Securityholders’ Agent from the Escrow Fund otherwise distributable to the Escrow Participants (and not distributed or distributable to a Covered Person or subject to a pending claim for recovery of Losses pursuant to an Officer’s Certificate delivered in compliance with this Agreement or Agreement) pursuant to the terms hereof and of the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”)at the time of distribution, defending all indemnity claims against and such recovery will be made from the Escrow Amount pursuant Participants according to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matterstheir respective Pro Rata Portions. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment No provision of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes shall require the Securityholders’ Representative to:
(i) Receive all notices to expend or documents given risk its own funds or to be given to Securityholders’ Representative pursuant hereto otherwise incur any financial liability in the exercise or to the Escrow Agreement performance of any of its powers, risks, duties or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising privileges under this Agreement or the Escrow Agreement;
(ii) Engage counsel. A decision, and such accountants and other advisors and incur such other expenses in connection with this Agreement act, consent or instruction of the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under including an amendment, extension or waiver of this Agreement pursuant to Sections 9.4 or 9.5, shall constitute a decision of the Escrow Agreement; Participants and (D) all such actions as may shall be necessary to carry out any of the transactions contemplated by this Agreement final, binding and conclusive upon the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving CompanyParticipants.
(c) The Securityholders’ Representative From and after the Effective Time, Parent shall have no duties cause Surviving Corporation to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by provide the Securityholders’ Representative in connection with reasonable access, during normal business hours to information about the Escrow Agreement or Surviving Corporation solely for purposes of performing its duties and exercising its rights under this Agreement, subject to the Company’s reasonable security and confidentiality measures and insurance requirements.
Appears in 1 contract
Securityholders’ Representative. (a) The Securityholders’ Representative is hereby appointed, authorized and empowered to act as a representative, for the benefit of the Securityholders, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Securityholder, on the Securityholders’ Representative’s sole and absolute discretion, in connection with this Agreement, the Ancillary Agreements and the Transactions, which shall include the sole and exclusive power and authority: (i) to execute and deliver any and all of the assignments, agreements, documents, instruments or certificates required to be delivered by any one or more of the Securityholders at or prior to the Closing pursuant to Section 2.07 of this Agreement (with such modifications or changes therein as to which the Securityholders’ Representative, in its sole discretion, shall have full power consented) and authority to take all actions under agree to such amendments or modifications thereto as the Securityholders’ Representative, in its sole discretion, determines to be desirable; (ii) to negotiate, execute and deliver amendments to this Agreement and the Ancillary Agreements and such waivers and consents in connection with this Agreement and the Ancillary Agreements and the consummation of the Transactions as the Securityholders’ Representative, in its sole discretion, may deem necessary or desirable; (iii) to make any calculations required under this Agreement, including to determine Closing Indebtedness, Transaction Expenses, Closing Preferred Stock Merger Consideration, Closing Common Stock Merger Consideration, Closing Option Merger Consideration, and Closing Per Share Class A Common Stock Merger Consideration, Closing Per Share Class B Common Stock Merger Consideration, Closing Per Share Preferred Stock Merger Consideration, Common Stockholder Participation Percentage and Optionholder Participation Percentage; and (iv) to collect and receive all monies and other proceeds and property payable to the Securityholders’ Representative under this Agreement, the Escrow Agreement that are (or to be taken direct the collection and receipt thereof by Paying Agent), or with respect to the Securityholders’ Representative Expense Fund or otherwise as described herein, and, subject to any applicable withholding retention Laws, and net of any out-of-pocket expenses incurred by the Securityholders’ Representative. The , the Securityholders’ Representative shall disburse and pay the same to the Stockholders (and to the Surviving Corporation for further distribution to the Optionholders, subject to Section 2.11) consistent with each Person’s share of the Merger Consideration in accordance with this Agreement, subject, however, to such adjustments as Securityholders’ Representative may in its sole, good faith judgment deem appropriate and equitable under the circumstances; (v) to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Securityholders’ Representative arising out of or under or in any manner relating to this Agreement and each of the Ancillary Agreements or the Transactions, and to take any and all actions which he or she the Securityholders’ Representative believes are necessary or appropriate under the Ancillary Agreements or this Agreement for and on behalf of the Securityholders, including defending, asserting or pursuing any claim, action, proceeding or investigation (a “Claim”) against any member of the Parent Group or their Affiliates or respective Representatives, compromising or settling any such Claims, conducting negotiations with the members of the Parent Group, their Affiliates, and their respective Representatives regarding such Claims, and, in connection therewith, to: (a) assert any claim or institute any action, proceeding or investigation; (b) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by any member of the Parent Group, its Affiliates or any other Person, or by any federal, state or local Governmental Authority against the Securityholders’ Representative or any of the Securityholders, and receive process on behalf of any or all Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Securityholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (c) file any proofs of debt, claims and petitions as the Securityholders’ Representative may deem advisable or necessary; (d) settle or compromise any claims asserted under the Escrow Agreement; and (e) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Securityholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (vi) to refrain from enforcing any right of any Securityholder or the Securityholders’ Representative arising out of or under or in any manner relating to this Agreement or any Ancillary Agreement; (vii) to invest or reinvest the Securityholders’ Representative Expense Fund, or any other cash held by the Securityholders’ Representative hereunder, in such a manner as the Securityholders’ Representative deems appropriate (it being understood and agreed that, for U.S. federal income Tax purposes, each Securityholder shall be treated as a proportionate owner of the Securityholders’ Representative Expense Fund, and any earnings thereon shall be allocated to such Securityholder and so reported by the Securityholders’ Representative, to the extent required, to the IRS and any other taxing authority; (viii) to release to the Securityholders (in accordance with this Agreement) any then-remaining amounts comprising the Securityholders’ Representative Expense Fund (or any portion thereof), at such time or times and in such amounts as the Securityholders’ Representative may determine; (ix) to determine and to give instructions regarding the payment of amounts due and owing to any lenders of the Company or any of the Company Subsidiaries, including any Indebtedness; (x) to execute, deliver and perform under the Escrow Agreement, including to authorize the disbursement of any portion of the Escrow Amounts in accordance with this Agreement and the Escrow Agreement; (xi) to provide and receive notice and instructions to and from Parent and the Escrow Agent and otherwise act in its capacity as the Securityholders’ Representative under this Agreement and the Escrow Agreement; (xii) to engage and employ agents, includingattorneys, without limitationaccountants, executing advisors, and other representatives, in each case, as the Escrow Agreement as Securityholders’ Representative shall reasonably deem necessary or prudent in connection with the foregoing, and to determine and pay or give instructions regarding the payment of any costs and expenses incurred in connection therewith, whether from the Securityholders’ Representative Expense Fund or otherwise; and (xiii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, unit powers, assignment of membership interests, letters and other writings, and, in general, to do any and all things and to take any and all action that the Securityholders’ Representative, giving in its sole and receiving absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Transactions, the Ancillary Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(b) The Securityholders’ Representative shall not be entitled to any notice fee, commission or instruction permitted other compensation for the performance of its services hereunder, but shall be entitled to reimbursement, first, from the Securityholders’ Representative Expense Fund and, after depletion of Securityholders’ Representative Expense Fund, upon demand, from each Participating Class A Common Stockholder, Participating Class B Common Stockholder, and Participating Optionholder, based upon such Securityholder’s Common Stockholder Participation Percentage and/or Optionholder Participation Percentage, of all Securityholders’ Representative’s expenses incurred in such capacity, including those of attorneys retained by Securityholders’ Representative in connection with Securityholders’ Representative’s duties or required actions taken in respect of this Agreement or the Ancillary Agreements, and Securityholders’ Representative may deduct the same from any distributions that would be otherwise owed to Securityholders under this Agreement or the Escrow Ancillary Agreements, or any other agreement, document or instrument referred to herein or therein or executed in connection herewith and therewith.
(c) All of the indemnities, immunities and powers granted to the Securityholders’ Representative under this Agreement by shall survive the Closing Date or any termination of this Agreement or the Ancillary Agreements.
(d) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder, and (ii) shall survive the consummation of the Transactions or any termination of this Agreement.
(e) Parent, the Company, and each Subsidiary of the Company shall be entitled to rely on the authority granted pursuant to this Section 9.13 until the Securityholders’ Representative delivers written notice to the Parent of the appointment of a successor Securityholders’ Representative, interpreting all in which case, effective upon the date specified in such notice, Parent, the Company, and each Subsidiary of the terms Company shall be entitled to rely on the authority of such successor Securityholders’ Representative and provisions of such successor Securityholders’ Representative shall be deemed to be the Securityholders’ Representative for all purposes under this Agreement and each Ancillary Agreement.
(f) None of the Escrow Agreement, authorizing payments Securityholders’ Representative or any of its Representatives shall have any liability of any kind to be made any of the Securityholders with respect hereto to any action or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred omission by the Securityholders’ Representative in connection with this Agreement Agreement, any Ancillary Agreement, or the Escrow AgreementTransaction, defending all claims arising except in the event of liability directly resulting from the Securityholders’ Representative’s gross negligence or Fraud. In no event will the Securityholders’ Representative (A) be liable to any of the Securityholders for any action or omission pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging reasonable advice of counsel, accountants or other representatives (B) be liable to any of the Securityholders in connection with the foregoing matters. Without limiting Securityholders’ Representative’s investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the generality terms hereof, or as a result of any liquidation of any such investment prior to its maturity, or (C) be required to advance its own funds on behalf of the foregoing, Securityholders. The Securityholders’ Representative’s appointment as such shall not be deemed to create a partnership or other fiduciary or similar relationship between the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholder.
(g) The Securityholders’ Representative may not consent resign at any time by written notice to any amendment of this Agreement or Parent and the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the former Securityholders’ Representative to:
(iin its capacity as such) Receive all notices so resigning shall thereafter have no further obligations, responsibilities or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising liabilities under this Agreement or any of the Escrow Agreement;
Ancillary Agreements (iiin each case, in its capacity as a Securityholders’ Representative), except to execute and deliver such documents and to take such further action as may be reasonably required to effect the transfer of such Securityholders’ Representative’s obligations and responsibilities (in its capacity as such) Engage counselunder this Agreement and any of the Ancillary Agreements, as applicable, to the Appointee, and except for any liabilities that it incurred through the effective date of such accountants and other advisors and incur resignation or removal due to such other expenses in connection with this Agreement Securityholders’ Representative’s gross negligence or Fraud. In the Escrow Agreement event that a Securityholders’ Representative resigns, a new Securityholders’ Representative shall be appointed by a vote of the Participating Class A Common Stockholders and/or the Participating Class B Common Stockholder that owned more than fifty percent (50%) of the aggregate Common Stockholder Participation Percentages immediately prior to the date hereof (the “Appointee”), such appointment to become effective upon the written acceptance thereof by the Appointee. Upon sch acceptance by the Appointee: (A) the Appointee shall promptly notify Parent and the transactions contemplated hereby or thereby Securityholders of is appointment as the Securityholders’ Representative may hereunder; and (B) the former Securityholders’ Representative so resigning shall as promptly as is reasonably practicable deliver to the Appointee all books, records, documents and other materials in his or her sole discretion deem appropriate;
(iii) After its possession relating to this Agreement and the Effective Time, take such action Ancillary Agreements that are reasonably necessary for the Appointee to perform its obligations as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Companyapplicable Ancillary Agreements.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Stewart Information Services Corp)
Securityholders’ Representative. (a) The Securityholders’ At the Effective Time, each of the Securityholders shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇▇▇ River Ventures, LLC as the true and lawful agent and attorney-in-fact of the Securityholders in the capacity as the Securityholders Representative shall have with full power of substitution to act in the name, place and authority to take all actions under stead of the Securityholders in connection with the Merger, the transactions contemplated by this Agreement and the Escrow Agreement that are Agreement, in accordance with the terms and provisions of this Agreement, and to be taken by act on behalf of the Securityholders’ Representative. The Securityholders’ Securityholders in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Securityholders Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the Securityholders Representative shall have the power to take any and all other actions which he or she it believes are necessary or appropriate under in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, executing this Agreement, the Escrow Agreement and any amendment hereto or thereto as Securityholders’ Securityholders Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Securityholders Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Securityholders Representative in connection with this Agreement or and the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 8.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with the Parent Parties and its their agents regarding such claims, dealing with the Parent Parties and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or and the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Securityholders Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment or waiver hereof or thereof in his or her its capacity as Securityholders’ Representative; provided, however, the Securityholders’ Securityholders Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Company and each Parent and MergerCo Party each hereby authorizes the Securityholders’ Securityholders Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Securityholders Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Securityholders Representative may in his or her its sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Securityholders Representative may in his or her its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of the Parent or MergerCo Parties contained in this Agreement or in any document delivered by Parent or MergerCo them pursuant hereto; (B) taking such other action as the Securityholders’ Securityholders Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their its capacity as Securityholders’ Securityholders Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X VIII and any waiver of any obligation of any Parent Party or the Surviving CompanyCorporation.
(c) The Securityholders’ Securityholders Representative shall act for the Securityholders under this Agreement in a manner it believes to be in the best interests of the Securityholders and consistent with the obligations under this Agreement and the Escrow Agreement, however, the Securityholders Representative is not an agent of the Securityholders and shall have no duties to the Indemnifying Securityholders or any liability for any loss or damages to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Securityholders Representative in performance of its obligations hereunder.
(d) The Securityholders shall jointly and severally, indemnify the Securityholders Representative (and its partners, affiliates, directors, officers and employees) and hold it harmless from and against any loss, liability, damage, cost and expense of any nature incurred by Securityholders Representative arising out of or in connection with its appointment as representative of the Securityholders pursuant to this Section 8.6 and its actions and omissions in such capacity or the administration of its duties hereunder, including attorney’s fees and other costs and expenses incurred in connection herewith. This indemnification shall survive the termination of this Agreement. The Securityholders Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Securityholders Representative in accordance with such advice, the Securityholders Representative shall not be liable to Ultimate Parent, Parent, MergerCo, the Securityholders or the Escrow Agent or any other Person.
(e) The Securityholders Representative shall have reasonable access to information of and concerning any Indemnity Claim and which is in the possession, custody or control of Parent or the Surviving Corporation and the reasonable assistance of Parent’s and the Surviving Corporation’s officers and employees for purposes of performing the Securityholders Representative duties under this Agreement or the Escrow Agreement and exercising its rights under this Agreement and the Escrow Agreement, including for the purpose of evaluating any Indemnity Claim against the Escrow Amount by any Parent/MergerCo Indemnified Party; provided that the Securityholders Representative shall treat confidentially and not, except in connection with enforcing its rights under this Agreement and the Escrow Agreement, disclose any nonpublic information from or concerning any Indemnity Claim to anyone (except to the Securityholders Representative’s attorneys, accountants or other advisers, to Securityholders and on a need-to-know basis to other individuals who agree to keep such information confidential).
(f) In the performance of its duties hereunder, the Securityholders Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Securityholder or any party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(g) A majority in interest of the Securityholders shall have the right at any time during the term of the Escrow Agreement to remove the then-acting Securityholders Representative to appoint a successor Securityholders Representative; provided, however, that neither such removal of the then acting Securityholders Representative nor such appointment of a successor Securityholders Representative shall be effective until the delivery to the Escrow Agent of executed counterparts of a writing signed by each such Stockholder with respect to such removal and appointment, together with an acknowledgement signed by the successor Securityholders Representative appointed in such writing that he, she or it accepts the responsibility of successor Securityholders Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Securityholders Representative. For all purposes hereunder, a majority in interest of the Securityholders shall be determined on the basis of each Securityholder’s allocation set forth on the Allocation Schedule. Each successor Securityholders Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholders Representative, and the term “Securityholders Representative” as used herein and in the Escrow Agreement shall be deemed to include any interim or successor Securityholders Representative.
(h) Subject to Section 8.6(g), the appointment of the Securityholders Representative hereunder is irrevocable and any action taken by the Securityholders Representative pursuant to the authority granted in this Section 8.6 shall be effective and absolutely binding as the action of the Securityholders Representative under this Agreement or the Escrow Agreement.
Appears in 1 contract
Securityholders’ Representative. (a) The By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Indemnifying Person hereby appoints and constitutes Fortis Advisors LLC as the Securityholders’ Representative shall have full power for and authority on behalf of the Indemnifying Persons and as his, her or its attorney-in-fact and exclusive agent to take all actions under execute and deliver this Agreement, the Escrow Agreement and the Escrow Paying Agent Agreement that are (collectively, the “Representative Agreements”) and for all other purposes hereunder and thereunder and to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he and make any and all decisions required or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be taken or made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative under the Representative Agreements and the Securityholders’ Representative Engagement Agreement, including the exercise of the right to: (i) give and receive notices and communications under the Representative Agreements; (ii) authorize delivery to Parent of cash from the Escrow Fund in connection accordance with this Agreement or Section 3.6, Article XI and the Escrow Agreement; (iii) determine the amounts payable (if any) to each Company Stockholder, defending all claims arising Company Warrantholder and Bonus Plan Participant pursuant to Section 3.5 (an “NWC Claim”Sections 3.6(e), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 11.5 and 13.3, (an “Indemnity Claim”), consenting iv) agree to, compromising negotiate, enter into settlements and compromises of and comply with court orders with respect to disputes under any Representative Agreement; (v) agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of any Representative Agreement; and (vi) take all actions necessary or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and appropriate in the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or good faith judgment of the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with Securityholders’ Representative for the foregoing mattersaccomplishment of the foregoing. Without limiting the generality of Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the full power Indemnifying Persons, except as expressly provided in the Representative Agreements and authority in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedules. The Securityholders’ Representative may resign at any time and the identity of the Securityholders’ Representative may be changed, and a successor Securityholders’ Representative may be appointed, from time to interpret all time (including in the terms event of the resignation or the death, disability or other incapacity of the Securityholders’ Representative) by the Advisory Group, and provisions any such successor shall succeed the Securityholders’ Representative as Securityholders’ Representative hereunder. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Agreement. No bond shall be required of the Securityholders’ Representative; provided. From and after the Effective Time, howevera decision, act, consent or instruction of the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholdershall be final, binding and conclusive upon each Indemnifying Person.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 1 contract
Sources: Merger Agreement (K12 Inc)
Securityholders’ Representative. (a) The By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders and, if applicable, specific authorization set forth in a Joinder Agreement, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware Law) shall be deemed to have agreed to appoint Fortis Advisors LLC as the Securityholders’ Representative as the exclusive agent and attorney-in-fact for and on behalf of the Company Securityholders to (i) amend, modify, or supplement this Agreement following the Effective Time as contemplated in Section 9.11, (ii) give and receive notices and communications, (iii) 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 made by Parent Indemnified Persons hereunder (including matters with respect to Earn-out Payments), (iv) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Person against any Company Securityholder or by any such Company Securityholder against any Parent Indemnified Person or any dispute between any Parent Indemnified Person and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and (v) to take all other actions that are either (x) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or otherwise in connection with this Agreement, the Escrow Agreement and the Securityholders’ Representative Engagement Agreement or (y) specifically mandated by the terms of this Agreement. Notwithstanding the foregoing, the Securityholders’ Representative shall have full power no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and authority in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of its intent to take all actions under resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of at least a majority of the issued and outstanding shares of Company Capital Stock immediately prior to the Effective Time. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative 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’ Representative.
(b) Certain Company Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement, the Escrow Agreement that are and the Securityholders’ Representative Engagement Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”), shall be taken by liable for any act done or omitted hereunder, under the Escrow Agreement or under the Securityholders’ Representative Engagement Agreement as Securityholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under only have the duties expressly stated in this Agreement and the Escrow Agreementshall have no other duty, including, without limitation, executing the Escrow Agreement as express or implied. The Securityholders’ RepresentativeRepresentative may engage attorneys, giving accountants and receiving other professionals and experts. The Securityholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any notice or instruction permitted or required under this Agreement or the Escrow Agreement action taken by the Securityholders’ RepresentativeRepresentative based on such reliance shall be deemed conclusively to have been taken in good faith. The Company Securityholders shall indemnify the Securityholders’ Representative Group and hold the Securityholders’ Representative Group harmless against any loss, interpreting all liability, damage, claim, fine, judgment, amount paid in settlement, fee or expense incurred on the part of the terms Securityholders’ Representative (so long as the Securityholders’ Representative was acting in good faith in connection therewith) and provisions arising out of this Agreement and or in connection with the Escrow Agreementacceptance or administration of the Securityholders’ Representative’s duties hereunder, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket including the reasonable fees and expenses of any legal counsel and other obligations skilled professionals retained by the Securityholders’ Representative and in connection with seeking recovery from insurers (“Securityholders’ Representative Expenses”). The Securityholders’ Representative shall have the right to satisfy Securityholders’ Representative Expenses first, from the Expense Fund Distribution Amount and prior to any distribution to the Company Stakeholders of the Expense Fund Distribution Amount, second, from any distribution of the Escrow Funds otherwise distributable to the Company Securityholders at the time of distribution, and third, directly from the Company Securityholders. The Company Securityholders acknowledge that the Securityholders’ Representative 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’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in connection with performing such actions. A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”)9.11 hereof, defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality shall constitute a decision of the foregoingCompany Securityholders and shall be final, binding and conclusive upon the Company Securityholders.
(c) All such decisions of the Securityholders’ Representative shall have the full power and authority be made by written consent.
(d) Parent shall be entitled to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, deal exclusively with the Securityholders’ Representative may not consent on all matters relating to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(bincluding Article VIII) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes for which the Securityholders’ Representative to:
has authority hereunder and shall be entitled to rely conclusively (iwithout further evidence of any kind whatsoever) Receive all notices on any document executed or documents given or purported to be given to executed on behalf of any Company Securityholder by the Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counselRepresentative, and on any other action taken or purported to be taken on behalf of any Company Securityholder by the Securityholders’ Representative, as being fully binding upon such accountants and other advisors and incur such other expenses in connection with this Agreement Person. Notices or the Escrow Agreement and the transactions contemplated hereby communications to or thereby as from the Securityholders’ Representative may in his shall constitute notice to or her sole discretion deem appropriate;
(iii) After from each of the Effective Time, take such Company Securityholders. Any decision or action as by the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving hereunder, including any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as agreement between the Securityholders’ Representative is authorized and Parent relating to take under this Agreement the defense, payment or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant hereunder, shall constitute a decision or action of all Company Securityholders and shall be final, binding and conclusive upon each such Person and their successors as if expressly ratified and confirmed in writing by such Person. No Company Securityholder shall have the right to this Article X object to, dissent from, protest or otherwise contest the same. The powers, immunities and any waiver rights to indemnification granted to the Securityholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any obligation Company Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of Parent an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Surviving CompanyEscrow Funds.
(ce) The Securityholders’ Representative shall have no duties be entitled to: (i) rely upon the Consideration 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 Indemnifying Securityholders applicable Company Securityholder or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreementother party.
Appears in 1 contract
Securityholders’ Representative. (a) The By virtue of obtaining the Company Stockholder Approval or the execution and delivery by a Securityholder of a Support Agreement and/or Stockholder Transmittal Letter, Option Holder Transmittal Letter or Warrant Cancellation Agreement, as applicable, and without any further action of any of the Securityholders or the Company, each Securityholder will be deemed to have consented to the appointment of the Securityholders’ Representative shall have full power as the exclusive agent and authority to take attorney-in-fact for and on behalf of each such Securityholder, and the taking by the Securityholders’ Representative of any and all actions under this Agreement and the Escrow Agreement that are making of any decisions required or permitted to be taken by the Securityholders’ RepresentativeRepresentative under this Agreement, the Escrow Agreement and the other Transaction Documents, including the exercise of the power to (a) execute and deliver this Agreement and the other Transaction Documents and any amendment hereof or thereof or waiver hereunder or thereunder, (b) agree to, negotiate, enter into compromises of and comply with the decision of the Independent Accounting Firm with respect any adjustments to the Merger Consideration pursuant to Section 1.14, (c) agree to, negotiate, enter into settlements and compromises of and comply with Orders of courts and awards of arbitrators with respect to any Claims, (d) object to and resolve any Claims, (e) bind the Escrow Participants to the terms of the Escrow Agreement, (f) give and receive notices and communications pursuant to this Agreement, the Escrow Agreement and the other Transaction Documents, including the delivery of written instructions to the Escrow Agent, (g) authorize delivery of cash from either Escrow Account in satisfaction of any Claims and upon release to the Escrow Participants, (h) authorize the delivery of cash from the Reserve Fund to the Escrow Participants and (i) take all actions necessary or desirable in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, the Escrow Agreement and the other Transaction Documents. The Accordingly, the Securityholders’ Representative has unlimited authority and power to act on behalf of each Securityholder with respect to this Agreement, the Escrow Agreement and the other Transaction Documents and the disposition, settlement or other handling of all Claims, rights or obligations arising from and taken pursuant to this Agreement, the Escrow Agreement and the other Transaction Documents. Notwithstanding the foregoing, the Securityholders’ Representative shall take any have no obligation to act on behalf of the Securityholders, except as expressly provided herein, and all actions which he or she believes are necessary or appropriate under this Agreement for purposes of clarity, except as set forth herein and in the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by there are no obligations of the Securityholders’ RepresentativeRepresentative in any ancillary agreement, interpreting all schedule, exhibit or the Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Representative Group (as defined below) hereunder (i) are coupled with an interest and shall be irrevocable and survive the bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the terms and provisions whole or any fraction of this Agreement and his, her or its interest, if any, in any Merger Consideration, the Escrow AgreementAmounts, authorizing payments to if any, and/or each Milestone Payment, if any. The Securityholders and their successors will be made with respect hereto or thereto, obtaining reimbursement as provided for herein for bound by all out-of-pocket fees and expenses and other obligations of or incurred actions taken by the Securityholders’ Representative in connection with this Agreement or Agreement, the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent Representative Engagement Agreement and the Escrow Agent other Transaction Documents as if expressly confirmed and ratified in writing by the Securityholders, and Parent shall be entitled to rely on any action or decision of the Securityholders’ Representative. All defenses that may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement, taking the Escrow Agreement or the other Transaction Documents are waived. The Securityholders’ Representative may resign at any all other actions specified in time and may be removed or contemplated replaced by the Advisory Group. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group (as defined below) and the Closing and/or any termination of this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, Certain Securityholders have entered into an engagement agreement (the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes “Representative Engagement Agreement”) with the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given provide direction to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”), shall be liable to any Securityholder for any action or failure to act in connection with the acceptance or administration of the Securityholders’ Representative’s responsibilities hereunder, under the Escrow Agreement or under the Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes fraud, gross negligence or willful misconduct. The Securityholders will indemnify and defend the Representative Group and hold the Representative Group harmless against any and all losses, costs, damages, Liabilities, Taxes, expenses, Proceedings, judgments and settlements (including reasonable legal fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising out of or in connection with the Securityholders’ Representative’s execution and performance of this Agreement and any other Transaction Document, including the Escrow 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 directly caused by the fraud, gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, gross negligence or willful misconduct. Such Representative Losses may be recovered first, from the Reserve Fund, second, from any distribution of either Escrow Account or any Milestone Payment otherwise distributable to the Securityholders at the time of distribution, and third, directly from the Securityholders. The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholders’ Representative and the termination of this Agreement. The Securityholders acknowledge that the Securityholders’ Representative 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’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions. The Securityholders’ Representative shall be entitled to: (i) rely upon the Allocation Statement, (ii) rely upon any signature believed by it in good faith to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pacira Pharmaceuticals, Inc.)
Securityholders’ Representative. (a) The By virtue of the Company Shareholder Approval and the execution and delivery of Letters of Transmittal, and without any further acts of the Company Securityholders, the Company Securityholders have appointed Shareholder Representative Services LLC (previously defined as the Securityholders’ Representative shall have full power Representative) as agent and authority attorney-in-fact for each Company Securityholder for all matters relating to this Agreement and to the Escrow Agreement, including to give and receive notices and communications; to bind the Company Securityholders to the terms of the Escrow Agreement; to authorize delivery of cash from the Escrow Fund in satisfaction of claims by Parent; to object to such deliveries; to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; and to take all actions under this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and in the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all judgment of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or for the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality accomplishment of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or may be changed by the Company Securityholders from time to be given time upon not less than 30 days’ prior written notice to Parent. A Securityholders’ Representative pursuant hereto or may resign at any time upon giving at least 30 days’ written notice to the Escrow Agreement or in connection herewith or therewith Company Securityholders, except that no such resignation will become effective until the appointment of a successor Securityholders’ Representative. Upon resignation of a Securityholders’ Representative, the Company Securityholders will agree on a successor Securityholders’ Representative within 30 days after receiving such notice. If the Company Securityholders fail to agree upon a successor Securityholders’ Representative within such time, Company will designate a successor Securityholders’ Representative. Any successor Securityholders’ Representative will execute and to receive and accept services of legal process in connection deliver an instrument accepting such appointment and, without further acts, will be vested with any suit or proceeding arising under this Agreement or all the Escrow Agreement;
(ii) Engage counselrights, powers, and such accountants and other advisors and incur such other expenses in connection with this Agreement or duties of the Escrow Agreement and the transactions contemplated hereby or thereby predecessor Securityholders’ Representative as if originally named as the Securityholders’ Representative may in and the resigning Securityholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Securityholders’ Representative, and no Securityholders’ Representative will receive compensation for his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as services. Notices or communications to or from the Securityholders’ Representative may in his will constitute notice to or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in from each Company Securityholder for all matters relating to this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized and to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties will not be liable for any act done or omitted hereunder as the Securityholders’ Representative while acting in good faith. Subject to the Indemnifying Securityholders limitations of this Agreement, the Escrow Fund will be available to indemnify the Securityholders’ Representative and hold the Securityholders’ Representative harmless against all loss, liability, or liability expense incurred without bad faith or intentional misconduct on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of the Securityholders’ Representative’s duties, including the reasonable fees and expenses of any legal counsel retained by the Securityholders’ Representative. Subject to the Indemnifying Securityholders with respect limitations of this Agreement, the Securityholders’ Representative will be entitled to any action taken, decision made reimbursement from the Escrow Fund of costs and expenses incurred by or instruction given by on behalf of the Securityholders’ Representative in the performance of his or her duties, including the reasonable fees and expenses of any legal counsel retained by the Securityholders’ Representative, in accordance with the terms of this Agreement.
(d) A decision, act, consent, or instruction of the Securityholders’ Representative relating to this Agreement or to the Escrow Agreement will constitute a decision of the Company Securityholders and will be final, binding, and conclusive upon each Company Securityholder. Parent and all other persons entitled to indemnification under this Agreement or any other document or agreement entered into in connection with the Escrow Agreement Transactions (the “Indemnified Persons”), may rely upon any such decision, act, consent, or this Agreementinstruction of the Securityholders’ Representative as being the decision, act, consent, or instruction of the Company Securityholders. Parent and all other Indemnified Persons are relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent, or instruction of the Securityholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Renren Inc.)
Securityholders’ Representative. (a) The Each Seller Securityholder by approving this Agreement and the transactions contemplated hereby, executing a Letter of Transmittal and/or participating in the Merger and accepting the benefits thereof, hereby irrevocably and unconditionally appoints Papachey, Inc. as its true and lawful attorney-in-fact, to act as its representative (“Securityholders’ Representative”) under this Agreement and, as such, to act, as such holder’s agent (with full power of substitution), to take such action on such holder’s behalf with respect to all matters relating to this Agreement, the Merger and the transactions contemplated hereby, including (i) to execute and deliver all certificates and documents that the Securityholders’ Representative shall have full power deems necessary or appropriate in connection with the consummation of the Merger; (iii) to receive and authority provide a receipt for all payments made by Buyer and/or Seller to take all actions any of the Seller Securityholders under this Agreement; (iv) to pay for or reimburse itself for the costs and expenses of the Securityholders’ Representative under this Agreement and the Escrow Agreement out of the Securityholders’ Representative Expense Fund; (v) to terminate, amend or waive any provision of this Agreement or the Escrow Agreement, provided that are any such termination, amendment or waiver, if material to be taken by the rights and obligations of the Seller Securityholders in the reasonable judgment of the Securityholders’ Representative. The Securityholders’ Representative , shall take be taken in the same manner with respect to all holders unless otherwise agreed by each holder who is subject to any disparate treatment of a potentially adverse nature; (vi) to defend and settle all actions which he or she believes are necessary or appropriate under this Agreement disputes and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required claims that arise under this Agreement or the Escrow Agreement by the Securityholders’ Representativeor any other, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto certificate or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative instrument delivered in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant ; and (vii) to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising do or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding refrain from doing any further act or deed on behalf of such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, holders that the Securityholders’ Representative shall have deems necessary or appropriate in such Person’s sole discretion relating to the full power and authority to interpret all the terms and provisions subject matter of this Agreement and the Escrow Agreement as fully and to consent to completely as any amendment hereof or thereof in his or her capacity as Seller Securityholder could do if personally present and acting. All decisions and actions by the Securityholders’ Representative; provided, however, including any agreement between the Securityholders’ Representative may not consent and the Buyer Indemnified Parties relating to indemnification obligations of the Seller Securityholders under Article IX, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all of the Seller Securityholders, and no holder shall have the right to object, dissent, protest or otherwise contest the same. The Securityholders’ Representative shall incur no liability to the Seller Securityholders with respect to any amendment of this Agreement action taken or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of suffered by such Securityholder.
(b) The Companyholders in reliance upon any notice, the Indemnifying Securityholdersdirection, Parent and MergerCo each hereby authorizes instruction, consent, statement or other documents believed by the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given genuinely and duly authorized, nor for any other action or inaction taken in its capacity as the Securityholders’ Representative, including with respect to the indemnification obligations of the Seller Securityholders under Article IX, including the defense or settlement of any claims and the making of payments with respect thereto. The Securityholders’ Representative pursuant hereto or to the Escrow Agreement or may, in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding all questions arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby thereby, rely on the advice of counsel, and for anything done, omitted or thereby as suffered in good faith by the Securityholders’ Representative may in his or her sole discretion deem appropriate;shall not be liable to the Seller Securityholders.
(iiib) After Buyer and the Effective TimeEscrow Agent shall be entitled to conclusively rely on the instructions, take such action as decisions and acts of Securityholders’ Representative, the Escrow Agent and Buyer are hereby released and relieved from any liability to any Person for any acts done by them in accordance with any instructions, decisions or acts of the Securityholders’ Representative. Buyer and the Escrow Agent are each hereby expressly authorized to rely on the genuineness of the signature of the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in instrument, certificate or document. Upon receipt of any writing that has been signed by the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement Buyer and the Escrow Agreement, including, Agent may each act upon the same without limitation, any further duty of inquiry as to the defense and/or settlement genuineness of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Companywriting.
(c) The Securityholders’ Representative shall have no duties be entitled to conclusively rely, and shall be fully protected from action by the Seller Securityholders in relying, upon any statements furnished to it by any holder, or Buyer, or any other evidence deemed by the Securityholders’ Representative to be reliable, and the Securityholders’ Representative shall be entitled to act on the advice of counsel selected by it.
(d) By approving this Agreement, executing the Letter of Transmittal and/or participating in the Merger and accepting the benefits thereof, the Seller Securityholders immediately prior to the Indemnifying Effective Time agree on a several and not joint basis to (i) indemnify the Securityholders’ Representative (in its capacity as such) against and to hold the Securityholders’ Representative (in its capacity as such) harmless from, any and all Damages which may at any time be imposed upon, incurred by or asserted against the Securityholders’ Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or the Escrow Agreement or in connection herewith in such capacity, and (ii) to pay the Securityholders’ Representative for all costs and expenses incurred on behalf of the Seller Securityholders, promptly upon demand by the Securityholders’ Representative and on an as-incurred basis, on a pro rata basis. The agreements in this Article X shall survive termination of this Agreement.
(e) The Securityholders’ Representative shall be entitled to reimbursement from the Seller Securityholders or liability to through the Indemnifying Securityholders’ Representative Expense Fund and, once exhausted, otherwise directly from such Seller Securityholders with respect to any action takenon a pro rata basis for out of pocket fees and expenses (including legal, decision made or instruction given accounting and other advisors’ fees and expenses, if applicable) incurred by the Securityholders’ Representative in connection with performing its obligations under this Agreement and the Escrow Agreement or this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Securityholders’ Representative. (a) Immediately upon the approval of this Agreement by the Stockholder Approval, and without the requirement of further action on the part of any Securityholder, each Securityholder shall be deemed to, and shall, have consented to the appointment of Safeguard Delaware, Inc. as the Securityholders’ Representative, as the agent and attorney-in-fact for and on behalf of the Securityholders other than the Dissenting Stockholders, if any (the “Securityholders’ Representative”). The Securityholders’ Representative shall have full power and authority to shall, on behalf of the Securityholders:
(i) take all actions under action permitted in connection with the implementation of those provisions of this Agreement and the Escrow Agreement that are to be taken require or permit action by the Securityholders’ Representative. The ,
(ii) take all action permitted in connection with the defense and/or settlement of any and all claims for which the Securityholders may be required to provide indemnification pursuant to Section 11 (Indemnification) hereof (including rejecting, contesting, negotiating, settling and resolving any such claims) and any claims that may be made against the Escrow Amount,
(iii) comply with Orders of courts and determinations and awards of arbitrators with respect to claims,
(iv) review and take action with respect to Tax Returns,
(v) give and receive all notices and service of process required or permitted to be given or received by the Securityholders or the Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement,
(vi) execute and deliver all amendments and waivers to this Agreement and the Escrow Agreement that the Securityholders’ Representative deemed necessary or appropriate, whether prior to, at or after the Closing, and
(vii) take any and all such additional action as is contemplated to be taken by or on behalf of the Securityholders by the terms of this Agreement or of the Escrow Agreement or as may be necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing.
(b) All notices provided to and/or legal process served upon the Securityholders’ Representative in accordance with this Agreement or the Escrow Agreement shall be deemed to be provided to and/or served upon the Securityholders and shall be conclusive and binding upon the Securityholders. All decisions, actions, agreements, and instructions by the Securityholders’ Representative, interpreting all including any consent, waiver, or agreement between the Securityholders’ Representative and any Buyer Indemnitee relating to the defense or settlement of any claim for which the terms Securityholders may be required to provide indemnification pursuant to Section 11 (Indemnification) hereof, shall be conclusive and provisions of this Agreement binding upon the Securityholders; and the Buyer, each other Buyer Indemnitee and the Escrow AgreementAgent shall be entitled to rely conclusively thereon. The Buyer, authorizing payments each other Buyer Indemnitee and the Escrow Agent shall have no duty to inquire into the authority of any person reasonably believed to be made the Securityholders’ Representative and no responsibility or liability for any action or omission thereof, and no party shall have any cause of action against the Buyer, any other Buyer Indemnitee or the Escrow Agent for any action or omission by such party in reliance upon the instructions or decisions of any person reasonably believed to be the Securityholders’ Representative.
(c) In the event that more than one Person shall at any time serve collectively as the Securityholders’ Representative, decisions of such Persons shall, as between them and with respect hereto or theretoto the rights of the Securityholders in relation to the Securityholders’ Representative, obtaining reimbursement be made by majority vote; provided, however, that they shall designate a single Person as provided for herein “Securityholders’ Representative” for all purposes involving the Buyer, any other Buyer Indemnitee, or the Escrow Agent.
(d) The Securityholders’ Representative is authorized to act on behalf of the Securityholders notwithstanding any dispute or disagreement among the Securityholders. In taking any actions as Securityholders’ Representative, the Securityholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person he or it reasonably believes to be authorized thereunto. The Securityholders’ Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Securityholders’ Representative shall not be liable to any Securityholder for anything done, omitted or suffered in good faith by the Securityholders’ Representative based on such advice. The Securityholders’ Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and/or the Escrow Agreement and no implied covenants or obligations shall be read into this Agreement or the Escrow Agreement against the Securityholders’ Representative.
(e) As of the Effective Time, Buyer shall cause the Payment Agent to wire to the Securityholders’ Representative the Expense Fund, which will be held by the Securityholders’ Representative as agent and for the benefit of the Securityholders and will be used for the purposes of paying any professional fees and expenses of any attorney, accountant or other advisors retained by the Securityholders’ Representative and other reasonable out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality performance of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising ’s duties under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ “Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as Expenses”). The Securityholders acknowledge that the Securityholders’ Representative is authorized to take under this Agreement not providing any investment supervision, recommendations or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) advice. The Securityholders’ Representative shall not have no duties to the Indemnifying Securityholders or any liability to the Indemnifying Securityholders with respect to any Securityholder for any action taken, decision made suffered or instruction given omitted by him or it as Securityholders’ Representative without gross negligence. The Securityholders shall, in accordance with their respective Pro Rata Shares, indemnify, defend and hold the Securityholders’ Representative harmless from and against any loss, damage, Tax, Liability and expense that may be incurred or paid by the Securityholders’ Representative arising out of or in connection with the acceptance or administration of his or its duties (except as caused by the Securityholders’ Representative’s gross negligence), including the legal costs and expenses of defending the Securityholders’ Representative against any claim or Liability in connection with the performance of his or its duties, to the extent such losses, damages, Taxes, Liabilities and expenses exceed the Expense Fund. The Securityholders will not receive any interest or earnings on the Expense Fund. The Securityholders’ Representative shall be entitled to recover from the Securityholders any Representative Expenses reasonably incurred by the Securityholders’ Representative in connection with actions taken by the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, without the requirement of any consent or approval by Buyer or any other Person. All of the indemnities, immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Merger or any termination of this Agreement.
(f) If not paid directly to the Securityholders’ Representative by the Securityholders, the Representative Expenses shall be satisfied (i) from the Expense Fund, (ii) to the extent the amount of the Representative Expenses exceeds the amounts then available in the Expense Fund, from any amounts payable to the Securityholders from the Escrow Amount and the Earn-Out Consideration solely to the extent the Securityholders would otherwise then be paid such amounts from the Escrow Amount or the Earn-Out Consideration in accordance with the terms of this Agreement and the Escrow Agreement (as applicable) and (iii) to the extent the amount of the Representative Expenses exceeds amounts immediately available to the Securityholders’ Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Pro Rata Share; provided, that while this section allows the Securityholders’ Representative to be paid from the Expense Fund, the Escrow Amount and the Earn-Out Consideration, this does not relieve the Securityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise.
(g) The Securityholders’ Representative shall have the power to designate his or its successor hereunder. In the event that the Securityholders’ Representative resigns from such position or is unable to continue in such position without having designated a successor, Securityholders holding among them the rights to receive at least a majority of the amount then remaining in the Escrow Amount to be distributed to the Securityholders (or, if no Escrow Amount remains, representing a majority in interest of the Pro Rata Shares) (the “Majority Holders”) shall promptly appoint another representative to fill such vacancy, and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement; provided that a resigning Securityholders’ Representative shall continue to perform his or its duties and obligations until his or its successor is appointed and has become a party to this Agreement and the Escrow Agreement. In the absence of such appointment, the Securityholders’ Representative or the Buyer may apply to a court of competent jurisdiction for the appointment of a successor Securityholders’ Representative, and the costs, expenses and reasonable attorneys’ fees incurred in connection with such proceeding shall be paid from the Expense Fund or, to the extent exhausted, the Securityholders. The Securityholders’ Representative may be removed at any time upon the written consent of the Majority Holders with not less than thirty (30) days’ prior written notice to the Buyer; provided however, that a successor Securityholders’ Representative must be concurrently appointed and become a party to this Agreement and the Escrow Agreement.
(h) The provisions of this Section 13.13 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the Transactions. Remedies available at Law for any breach of the provisions of this Section 13.13 will be inadequate; therefore, the Buyer and each other Buyer Indemnitee shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages or posting any bond if such person brings an action or proceeding to enforce the provisions of this Section 13.13.
Appears in 1 contract
Sources: Exhibit Agreement (PTC Inc.)
Securityholders’ Representative. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (asuch person ------------------------------- and any successor or successors being the "Securityholders' Representative") The ------------------------------- shall act as the representative of the Company Securityholders’ Representative , and shall have full power be authorized to act on behalf of the Company Securityholders and authority to take any and all actions under this Agreement and the Escrow Agreement that are required or permitted to be taken by the Securityholders’ Representative. The Securityholders’ ' Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all with respect to any claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims including the settlement thereof) made by a Parent Indemnified Party for indemnification against the Escrow Amount Fund pursuant to Section 9.2 this Article IX and with respect to any actions to be taken by the Securityholders' Representative pursuant to the terms of the Escrow Agreement (an “Indemnity Claim”)including, consenting without limitation, the exercise of the power to (i) authorize the delivery of the Escrow Amount to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, (ii) agree to, compromising or settling negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims and (iii) take all Indemnity Claimsactions necessary in the judgment of the Securityholders' Representative for the accomplishment of the foregoing). The Company Securityholders shall be bound by all actions taken by the Securityholders' Representative in its capacity thereof. The Securityholders' Representative shall promptly, conducting negotiations with Parent and its agents regarding such claimsin any event within ten (10) business days, dealing with Parent and provide written notice to the Escrow Agent Company Securityholders of any action taken on behalf of them by the Securityholders' Representative pursuant to the authority delegated to the Securityholders' Representative under this AgreementSection 9.04. The Securityholders' Representative shall at all times act in his or her capacity as Securityholders' Representative in a manner that the Securityholders' Representative believes to be in the best interest of the Company Securityholders. Neither the Securityholders' Representative nor any of its directors, taking officers, agents or employees, if any, shall be liable to any all other actions specified in person for any error of judgment, or contemplated by any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Securityholders' Representative may consult with legal counsel, independent public accountants and engaging other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or other representatives in connection with experts. The Securityholders' Representative shall not have any duty to ascertain or to inquire as to the foregoing matters. Without limiting the generality performance or observance of any of the foregoingterms, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof covenants or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement that would increase or the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The CompanyEscrow Agreement, the Indemnifying Securityholders, Parent ' Representative shall not exercise any discretion or take any action. Each Company Stockholder severally shall indemnify and MergerCo each hereby authorizes hold harmless and reimburse the Securityholders’ ' Representative to:
(i) Receive from and against such Company Stockholder's ratable share of any and all notices liabilities, losses, damages, claims, costs or documents given expenses suffered or incurred by the Securityholders' Representative arising out of or resulting from any action taken or omitted to be given to taken by the Securityholders’ ' Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and other than such accountants and other advisors and incur such other liabilities, losses, damages, claims, costs or expenses in connection with this Agreement arising out of or the Escrow Agreement and the transactions contemplated hereby or thereby as resulting from the Securityholders’ Representative may in his ' Representative's gross negligence, bad faith or her sole discretion deem appropriate;
(iii) After willful misconduct. Notwithstanding anything to the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement contrary herein or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including(i) the Securityholders' Representative is not authorized to, without limitationand shall not, the defense and/or settlement accept on behalf of any claims for Company Stockholder any merger consideration to which indemnification such Company Stockholder is sought pursuant to entitled under this Article X Agreement and any waiver of any obligation of Parent or (ii) the Surviving Company.
(c) The Securityholders’ ' Representative shall have no duties not in any manner exercise, or seek to the Indemnifying Securityholders or liability to the Indemnifying Securityholders exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any action taken, decision made or instruction given by Company Stockholder unless the Securityholders’ ' Representative is expressly authorized to do so in connection with a writing signed by such Company Stockholder. In all matters relating to the Escrow Agreement or Fund under this AgreementArticle IX, the Securityholders' Representative shall be the only party entitled to assert the rights of the Company Securityholders, and the Securityholders' Representative shall perform all of the obligations of the Company Securityholders hereunder. The Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Securityholders' Representative.
Appears in 1 contract
Sources: Merger Agreement (Netopia Inc)
Securityholders’ Representative. (a) At the Closing, R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be constituted and appointed, without any further act of any Securityholder, the Company Indemnifying Parties’ and the Company Indemnified Parties’ representative (the “Securityholders’ Representative”) and, as such, shall serve as and have all powers as agent and attorney-in-fact for and on behalf of each Company Indemnifying Party or Company Indemnified Party, as the case may be: (i) to give and receive notices and communications on their behalf with respect to any matters related to this Agreement, the Escrow Agreements or the Securityholders’ Representative Fund Escrow Agreement; (ii) to enter into and perform under the Escrow Agreements and the Securityholders’ Representative Fund Escrow Agreement; (iii) to authorize delivery of Indemnity Escrowed Shares or other property from the Indemnity Escrow Fund to a Parent Indemnified Party; (vi) to object to such deliveries and any claims set forth in any Parent Indemnification Certificate; (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 any claim for indemnification pursuant to this Article VIII; (vi) to litigate, mediate, arbitrate, defend, enforce or take any other actions and execute the Escrow Agreements and any other documents that the Securityholders’ Representative deems advisable in connection with enforcing any rights or obligations or defending any claim or action under this Agreement on behalf of the Company Indemnifying Parties and the Company Indemnified Parties; (vii) to sign receipts, consents or other documents in connection with the Securityholders’ Representative’s duties hereunder; and (viii) to take any and all actions necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing, in each case, without having to seek or obtain the consent of any Securityholder. Notice or communications to or from the Securityholders’ Representative shall constitute notice to or from the Company Indemnifying Parties and the Company Indemnified Parties. All actions to be taken by a Company Indemnified Party or Company Indemnifying Party, as the case may be, shall be taken solely by the Securityholders’ Representative.
(b) Without limiting the generality of the foregoing Section 8.7(a), the Securityholders’ Representative shall not incur any liability with respect to any action taken or suffered by him in reliance upon any direction, instruction, consent, statement or other document believed by him to be genuinely and duly authorized, nor for any action or inaction in reliance in good faith upon advice of legal counsel. The Securityholders’ Representative shall have rights to indemnification, contribution and reimbursement, as set forth in the Securityholders’ Representative Fund Escrow Agreement, from each Securityholder. If the Securityholders’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his responsibilities hereunder, Securityholders, acting by consent of Securityholders having an interest in the Indemnity Escrow Fund equal to a majority of the Indemnity Escrowed Shares then held in the Indemnity Escrow Fund (a “Majority”) shall, as soon as practicable after such death, resignation or disability, appoint a successor to the Stockholders’ Representative and immediately thereafter notify Parent of the identity of such successor. If a Majority chooses to remove the Securityholders’ Representative for any reason, such Majority shall simultaneously appoint a successor to the Securityholders’ Representative and immediately thereafter notify Parent of the identity of such successor. Any such successor pursuant to either of the preceding two sentences shall succeed the Securityholders’ Representative as Securityholders’ Representative hereunder.
(c) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute a decision of the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be, and shall be final, binding and conclusive upon the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be. The Indemnity Escrow Agent and any Parent Indemnified Party may rely upon any decision, act, consent or instruction of the Securityholders’ Representative as being the decision, act, consent or instruction of the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be. Although the Securityholders’ Representative shall not be obligated to obtain instructions from the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be, prior to any decision, act, consent or instruction, if, and to the extent that, the Securityholders’ Representative receives any written instructions from a Majority, the Securityholders’ Representative shall comply with such instructions.
(d) The Securityholders’ Representative shall have full power and authority not be liable to take all actions under this Agreement and the Escrow Agreement that are Securityholders for any act taken or omitted to be taken as Securityholders’ Representative or for the selection of investments of the escrowed cash in the Indemnity Escrow Fund and the Securityholders’ Representative Fund and any interest or income earned thereon or for investment losses incurred thereon, except for the commission of actual fraud or willful misconduct. Each Securityholder shall severally indemnify the Securityholders’ Representative and hold the Securityholders’ Representative harmless against any damages or expenses incurred without bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of the Securityholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholders’ Representative. .
(e) The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement power of attorney granted by the Company Indemnifying Parties and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments Company Indemnified Parties to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection pursuant to this Section 8.7 is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Indemnifying Party or Company Indemnified Party.
(f) The provisions of this Section 8.7 (or a reasonably detailed summary thereof) shall be distributed to the Securityholders prior to the Company Stockholders Meeting, and approval of the Merger and adoption of this Agreement or by the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality Securityholders shall constitute ratification of the foregoing, appointment of the Securityholders’ Representative shall have and approval of the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such SecurityholderSection 8.7.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 1 contract
Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.10, 1.13 and 8, the Participating Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement and/or the completion and execution of the letters of transmittal shall be deemed to have designated Fortis Advisors LLC as the representative of the Participating Securityholders (the “Securityholders’ Representative”).
(b) In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Participating Securityholders who hold at least a majority in interest of the Ownership Percentages at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement and/or the delivery of the letter of transmittal contemplated by Section 1.9, and without any further action of any of the Participating Securityholders or the Company, the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Securityholders’ Representative shall be appointed and constituted as the true and lawful attorney-in-fact and exclusive agent of each Participating Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, the Seller Note or the Securityholders’ Representative Engagement Agreement. The Securityholders’ Representative hereby accepts such appointment;
(ii) the Securityholders’ Representative shall have full power authority to, after the Closing (A) execute, deliver, acknowledge, certify and authority file on behalf of the Participating Securityholders (in the name of any or all of the Participating Securityholders or otherwise) any and all documents that the Securityholders’ Representative may, in its sole discretion, determine to take be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Representative may, in its sole discretion, determine to be appropriate, (B) do all actions under things and to perform all acts, including amending the Ancillary Agreements, waiving rights, discharging liabilities and obligations, making all decisions relating to the determination of the Upfront Merger Consideration pursuant to Section 1.10 and the disbursement of the amounts payable to the Participating Securityholders pursuant to the Seller Note, the Contingent Payments (or any portion thereof) in accordance with this Agreement, and resolve disputes, including with respect to Contingent Payments and indemnification claims hereunder, (C) give and receive notices and other communications relating to this Agreement and the Escrow transactions contemplated hereby (except to the extent that this Agreement contemplates that are to such notice or communication shall be taken given or received by the Securityholders’ Representative. The Securityholders’ Representative shall Participating Securityholder individually), (D) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and all actions which he disputes arising out of or she believes are necessary or appropriate under related to this Agreement and the Escrow Agreementtransactions contemplated hereby and thereby and (E) engage attorneys, includingaccountants, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses financial and other obligations advisors, paying agents and other persons necessary or appropriate in the judgment of or incurred by the Securityholders’ Representative in connection with this Agreement or for the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against accomplishment of the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing mattersforegoing. Without limiting the generality of Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the full power Participating Securityholders, except as expressly provided herein and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment Engagement Agreement, and for purposes of this Agreement or the Escrow Agreement that would increase the liability clarity, there are no obligations of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule;
(iii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Securityholders’ Representative as to any of the matters described in this Section 1.12, and no party shall have any cause of action against Parent or its Affiliates for any action taken by Parent or its Affiliates in reliance upon any such instructions or decisions;
(iv) The Securityholders’ Representative shall be entitled to:
: (i) Receive all notices or documents given or rely upon the Closing Payment Schedule, (ii) rely upon any signature believed by it to be given genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Participating Securityholder or other party;
(v) all actions, decisions and instructions of the Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Securityholders’ Representative Engagement Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as including any agreement between the Securityholders’ Representative may in his and Parent relating to the determination of the Upfront Merger Consideration pursuant to Section 1.10, the determination or her sole discretion deem appropriate;
(iii) After dispute of the Effective TimeContingent Payments, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents defense or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought the Participating Securityholders may be required to indemnify the Parent Indemnified Parties pursuant to this Article X Section 8 hereof, shall be conclusive and binding upon each of the Participating Securityholders and their successors as if expressly confirmed and ratified in writing by the Participating Securityholders, and all defenses which may be available to any waiver Participating Securityholder to contest, negate or disaffirm the action of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative taken in good faith under this Agreement or the Securityholders’ Representative Engagement Agreement are waived. Certain Participating Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement and the Securityholders’ Representative Engagement Agreement (such Participating Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). No Participating Securityholders shall have no duties to any cause of action against the Indemnifying Securityholders or liability to Securityholders’ Representative and neither the Indemnifying Securityholders with respect to Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”), shall be liable for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement or the Securityholders’ Representative Engagement Agreement, except for fraud or willful breach of this Agreement on the part of the Securityholders’ Representative;
(vi) the provisions of this Section 1.12, and the powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (i) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Participating Securityholder may have in connection with the Escrow transactions contemplated by this Agreement, (ii) shall survive the death, incompetence, bankruptcy or liquidation of any Participating Securityholder and shall be binding on any successor thereto, and (iii) shall survive the delivery of an assignment by any Participating Securityholder of the whole or any fraction of his, her or its interest in the Contingent Payments or any amounts payable to the Participating Securityholders pursuant to the Seller Note; and
(vii) the provisions of this Section 1.12 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Participating Securityholder, and any references in this Agreement to a Participating Securityholder or the Participating Securityholders shall mean and include the successors to the Participating Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) At the Closing, Parent shall cause to be deposited, in an account designated by the Securityholders’ Representative in writing at least two Business Days prior to the Closing Date, $[***] (the “Securityholders’ Representative Reserve”). The Securityholders’ Representative Reserve may be applied: (i) as the Securityholders’ Representative, in his, her or its sole discretion, determines to be appropriate to defray, offset, or pay any reasonable fees, costs, liabilities charges, losses, fines, damages, claims, forfeitures, actions, judgments, amounts paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) that the Securityholders’ Representative incurred in connection with the transactions contemplated by this Agreement or the Securityholders’ Representative Agreement, including in connection with the matters contemplated by Sections 1.10 and 1.13, and the evaluation or defense of any claim for indemnification under this Agreement (the “Securityholders’ Representative Expenses”). For U.S. federal and applicable state and local Tax purposes, the Securityholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by the Participating Securityholders on the Closing Date in accordance with their Ownership Percentages. Any Tax withholding with respect to a Participating Securityholder’s deemed receipt at Closing of its Ownership Percentage of the Securityholders’ Representative Reserve shall be satisfied from such Participating Securityholder’s share of the Upfront Merger Consideration and shall not reduce the Securityholders’ Representative Reserve. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Securityholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Securityholders’ Representative Reserve and has no tax reporting or income distribution obligations. The Participating Securityholders will not receive any interest on the Securityholders’ Representative Reserve and assign to the Securityholders’ Representative any such interest. Subject to Advisory Group approval, the Securityholders’ Representative may contribute funds to the Securityholders’ Representative Reserve from any consideration otherwise distributable to the Participating Securityholders. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The balance of the Securityholders’ Representative Reserve held pursuant to this Section 1.12, if any, shall, at the sole discretion of the Securityholders’ Representative and at such time to be determined in the sole discretion of the Securityholders’ Representative, be deposited by the Securityholders’ Representative with the Payment Agent and distributed to the Participating Securityholders according to each such Participating Securityholder’s Ownership Percentage. Prior to any such distribution of the Securityholders’ Representative Reserve, the Securityholders’ Representative shall deliver to Parent and the Payment Agent an updated Closing Payment Schedule (which need not be certified by an officer of the Company) setting forth the portion of the Securityholders’ Representative Reserve payable to each Participating Securityholder.
(e) As between the Participating Securityholders and the Securityholders’ Representative, the Securityholders’ Representative Group shall not be liable for any act done or omitted hereunder or under the Securityholders’ Representative Engagement Agreement as Securityholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Securityholders’ Representative Group shall be indemnified, defended and held harmless and reimbursed by the Participating Securityholders from and against any Securityholders’ Representative Expenses arising out of or in connection with the Securityholders’ Representative’s execution and performance of this Agreement, the Securityholders’ Representative Engagement Agreement or the agreements ancillary hereto or thereto, in each case as such Securityholders’ Representative Expense is suffered or incurred; provided, that in the event that any such Securityholders’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Participating Securityholders the amount of such indemnified Securityholders’ Representative Expenses to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Participating Securityholders, any such Securityholders’ Representative Expense may be recovered by the Securityholders’ Representative, at any time (i) from the Securityholders’ Representative Reserve, to the extent any funds remain in such fund, or (ii) from any distribution of Contingent Payments or pursuant to the Seller Note distributable to the Participating Securityholders at the time of distribution according to each Participating Securityholder’s Ownership Percentage; provided, however, that while this Section 1.12 allows the Securityholders’ Representative to be paid from Securityholders’ Representative Reserve, this does not relieve any Participating Securityholder from its obligation to pay its Ownership Percentage of any such Securityholders’ Representative Expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at Law or otherwise, and provided further that no Participating Securityholder shall be liable to the Securityholders’ Representative for any amount in excess of the portion of the Aggregate Merger Consideration (to the extent actually paid) to which such Participating Securityholder has actually received. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Participating Securityholders 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 Securityholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions. The Participating Securityholders acknowledge and agree that the foregoing indemnities and immunities will survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or the termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Chimerix Inc)
Securityholders’ Representative. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall, by virtue of the Merger and the approval of this Agreement at the Special Meeting held pursuant to Section 5.4, be appointed attorney-in-fact (a) The Securityholders’ Representative shall have with full power of substitution) and authority authorized and empowered to take act for and on behalf of any or all actions under of the holders of the Company Shares and Company Options immediately prior to Merger who are entitled to receive TSA Common Stock hereunder (the "Securityholders") in connection with the following matters: the indemnity provisions of Article X as they relate to the Securityholders generally, the escrow provisions of Article X, the notice provisions of this Agreement and such other matters as are reasonably necessary for the Escrow Agreement that are consummation of the transactions contemplated hereby (the above named representative, as well as any subsequent representative of the Securityholders appointed by him or after his death or incapacity elected by vote of holders of a majority of the Company Shares to be converted in the Merger and shares of Common Stock of the Company purchasable on the Effective Date pursuant to Company Options to be converted in the Merger (each being referred to as a "Securityholders' Representative"). By his execution hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby accepts such appointment and agrees to act as Securityholders' Representative hereunder. The Securityholders' Representative shall not be liable to any Securityholder, the Buying Parties or the Company or any other person with respect to any action taken or omitted to be taken by the Securityholders’ Representative. The Securityholders’ ' Representative shall take any and all actions which he under or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the Escrow Agreementpart of the Securityholders' Representative. Each of the Buying Parties and each of their respective Affiliates (as defined in Section 3.14, defending all claims arising and including, after the Closing, the Company) shall be entitled to rely on such appointment and treat the Securityholders' Representative as the duly appointed attorney-in-fact of each Securityholder. Each Securityholder who has not demanded appraisal rights pursuant to Section 3.5 (an “NWC Claim”2.1.2(i) or who executes the agreement required by Section 8.1.8(e), defending all indemnity claims against by such election to not demand appraisal rights or execution, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the Escrow Amount pursuant willingness of the Buying Parties to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by enter into this Agreement or is based, in part, on the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality appointment of a representative to act on behalf of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Transaction Systems Architects Inc)
Securityholders’ Representative. (a) By virtue of the adoption of this Agreement and the approval of the Merger by the Securityholders, each Securityholder (regardless of whether or not such Securityholder votes in favor of the adoption of this Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof, or otherwise approves or consents to the adoption of this Agreement and the Merger) hereby initially appoints, as of the date of this Agreement, Shareholder Representative Services LLC as the Securityholders’ Representative. The Securityholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she it believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all NWC Claims and Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken or omitted to be taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement while acting in good faith and without gross negligence or willful misconduct. The Indemnifying Securityholders shall severally (but not jointly) indemnify, defend and hold harmless the Securityholders’ Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, in each case as such Representative Loss is incurred or suffered; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the bad faith, gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Indemnifying Securityholders the amount of such indemnified Representative Loss attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Indemnifying Securityholders’, any such Representative Losses may be recovered by the Securityholders’ Representative from (i) the Securityholders’ Representative Reimbursement Amount, (ii) the amounts in the Indemnification Escrow Fund otherwise distributable to the Indemnifying Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided, that while this section allows the Securityholders’ Representative to be paid from the Securityholders’ Representative Reimbursement Amount and the Indemnification Escrow Fund, this does not relieve the Indemnifying Securityholders from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise.
(d) The Securityholders’ Representative shall serve as the Securityholders’ Representative without compensation except as provided in the Engagement Agreement.
(e) The Securityholders’ Representative shall have reasonable access to information of and concerning any NWC Claim and/or any Indemnity Claim and which is in the possession, custody or control of Parent or the Surviving Company and the reasonable assistance of Parent’s and the Surviving Company’s officers and employees for purposes of performing the Securityholders’ Representative’s duties under this Agreement or the Escrow Agreement and exercising its rights under this Agreement and the Escrow Agreement, including for the purpose of evaluating any Indemnity Claim against the Escrow Fund by Parent and any NWC Claim against the Escrow Fund; provided that the Securityholders’ Representative shall treat confidentially and not, except in connection with enforcing its rights under this Agreement and the Escrow Agreement, disclose any nonpublic information from or concerning any Indemnity Claim or any NWC Claim to anyone (except to the Securityholders’ Representative’s attorneys, accountants or other advisers, to Indemnifying Securityholders and on a need-to-know basis to other individuals who agree to keep such information confidential).
(f) In the performance of its duties hereunder, the Securityholders’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Indemnifying Securityholder or any party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(g) Each Securityholder acknowledges that Parent is relying and shall rely on the authority of the Securityholders’ Representative granted hereunder and shall be entitled to treat such Securityholders’ Representative as the duly appointed attorney-in-fact of each Securityholder and as having the duties, power and authority provided for in this Agreement and the Escrow Agreement. The Securityholders’ Representative may resign at any time. Notwithstanding the foregoing, subject to a Requisite Stockholder Approval, the Securityholders shall have the right at any time during the term of the Escrow Agreement to remove the then-acting Securityholders’ Representative to appoint a successor Securityholders’ Representative upon not less than five (5) Business Days’ prior written notice to Parent; provided, however, that neither such removal of the then-acting Securityholders’ Representative nor such appointment of a successor Securityholders’ Representative shall be effective until the delivery to the Escrow Agent of executed counterparts of a writing signed by each such Securityholder with respect to such removal and appointment, together with an acknowledgement signed by the successor Securityholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Securityholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Securityholders’ Representative. Each successor Securityholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholders’ Representative, and the term “Securityholders’ Representative as used herein and in the Escrow Agreement shall be deemed to include any interim or successor Securityholders’ Representative.
(h) Subject to Section 9.6(g), the appointment of the Securityholders’ Representative hereunder is irrevocable and any action taken by the Securityholders’ Representative pursuant to the authority granted in this Section 9.6 shall be effective and absolutely binding as the action of the Securityholders’ Representative under this Agreement or the Escrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Irobot Corp)
Securityholders’ Representative. (a) The ▇▇▇▇ ▇▇▇▇ shall be constituted and appointed as the representative (the “Securityholders’ Representative shall have full power Representative”) for and authority on behalf of the Former IRF Unitholders to give and receive notices and communications, to authorize delivery to ABE of cash or other property from the Escrow Fund in satisfaction of claims by ABE, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions under this Agreement and necessary or appropriate in the Escrow Agreement that are to be taken by judgment of the Securityholders’ RepresentativeRepresentative for the accomplishment of the foregoing. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and Such agency may be changed by the holders of a majority in interest of the Escrow Agreement, including, without limitation, executing the Escrow Agreement as SecurityholdersFund from time to time upon not less than ten days’ Representative, giving and receiving any prior written notice or instruction permitted or to ABE. No bond shall be required under this Agreement or the Escrow Agreement by of the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority receive no compensation for services. Notices or communications to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, from the Securityholders’ Representative may not consent shall constitute notice to any amendment or from each of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such SecurityholderFormer IRF Unitholders.
(b) The CompanySecurityholders’ Representatives shall not be liable for any act done or omitted hereunder as Securityholders’ Representative while acting in good faith, and any act done or omitted pursuant to the Indemnifying Securityholdersadvice of counsel shall be conclusive evidence of such good faith. The Former IRF Unitholders shall severally and pro rata, Parent and MergerCo each hereby authorizes in accordance with their respective Pro Rata Shares, indemnify the Securityholders’ Representative to:
(i) Receive all notices and hold him harmless against any loss, liability or documents given expense incurred without gross negligence or to be given to bad faith on the part of the Securityholders’ Representative pursuant hereto or to the Escrow Agreement and arising out of or in connection herewith with the acceptance or therewith and to receive and accept services administration of legal process in connection with any suit or proceeding arising his duties hereunder under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no reasonable access to information about IRF and ABE and the reasonable assistance of IRF’s and ABE’s officers and employees for purposes of performing his duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action takenand exercising his rights under this Article X, decision made or instruction given by provided, that the Securityholders’ Representative in connection with the Escrow Agreement shall treat confidentially and not disclose any nonpublic information from or this Agreementabout IRF or ABE to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Appears in 1 contract
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power and authority to take all actions under By virtue of the adoption of this Agreement and the Escrow Agreement that are to be taken by the requisite consent of the Company Stockholders, each of the Indemnifying Parties (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law) shall be deemed to have agreed to appoint Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Securityholders’ Representative. The Securityholders’ Representative shall take ”) for and on behalf of the Indemnifying Parties to give and receive notices and communications, to authorize payment to any and all actions which he or she believes are necessary or appropriate under this Agreement and Indemnified Party from the Escrow AgreementFund in satisfaction of claims by any Indemnified Party, includingto object to such payments, without limitationto agree to, executing the Escrow Agreement as Securityholders’ Representativenegotiate, giving enter into settlements and receiving compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any notice other claim by any Indemnified Party against any Indemnifying Party or instruction permitted by any such Indemnifying Party against any Indemnified Party or required under any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Escrow Agreement by transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the Securityholders’ Representative, interpreting all judgment of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement, defending all claims arising pursuant . Such agency may be changed by the Indemnifying Parties with the right to Section 3.5 (an “NWC Claim”), defending all indemnity claims against a majority of the Pro Rata Portions of the Escrow Amount pursuant Fund from time to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matterstime. Without limiting the generality of Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Indemnifying Parties, which resignation shall have be effective upon the full power and authority to interpret all earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the terms and provisions appointment of this Agreement and a successor by the holders of a majority in interest of the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Fund. No bond shall be required of the Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The CompanySecurityholders’ Representative will incur no liability of any kind with respect to any action or omission by the Securityholder’s Representative hereunder, except in the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes event of liability arising from the Securityholders’ Representative to:
(i) Receive all notices Representative’s bad faith, gross negligence or documents given or to be given to willful misconduct. The Securityholders’ Representative pursuant hereto or to shall only have the Escrow Agreement or duties expressly stated in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement and shall have no other duty, express or the Escrow Agreement;
(ii) Engage counselimplied. The Securityholders’ Representative may engage attorneys, and such accountants and other advisors professionals and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the experts. The Securityholders’ Representative may in his good faith rely conclusively upon information, reports, statements and opinions prepared or her sole discretion deem appropriate;
(iii) After the Effective Timepresented by such professionals, take such and any action as taken by the Securityholders’ Representative may based on such reliance shall be deemed conclusively to have been taken in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as good faith. The Indemnifying Parties will indemnify, defend and hold harmless the Securityholders’ Representative from and against any and all Losses (including the reasonable fees and expenses of counsel and, if necessary, experts, and all reasonable expenses of document location, duplication and shipment) (collectively, the “Securityholders’ Representative Expenses”), arising out of or in connection with the Securityholders’ Representative’s execution and performance of this Agreement, in each case as such Securityholders’ Representative Expense is authorized suffered or incurred; provided, that in the event that any such Securityholders’ Representative Expense is finally adjudicated to take under this Agreement have arisen from the bad faith, gross negligence or willful misconduct of the Securityholders’ Representative or any of its members, managers, agents, employees or affiliates, the Securityholders’ Representative will reimburse the Indemnifying Parties the amount of such Securityholders’ Representative Expense attributable to such bad faith, gross negligence or willful misconduct. Upon the Escrow AgreementTermination Date, the Securityholders’ Representative shall deliver the balance of the Representative Reimbursement Fund to the Escrow Agent, who shall promptly deliver such funds to the Indemnifying Parties, except with respect to any amount necessary to satisfy any pending certified requests made by the Securityholders’ Representative for Securityholders’ Representative Expenses. As soon as all such Securityholders’ Representative Expenses have been properly paid, the Securityholders’ Representative shall deliver the remaining portion of the Representative Reimbursement Amount to the Escrow Agent, who shall promptly deliver such funds to the Indemnifying Parties. Deliveries from the Representative Reimbursement Fund to the Indemnifying Parties pursuant to this Section 8.7(b) and the Escrow Agreement shall be made in proportion to their respective Pro Rata Portion of the remaining Representative Reimbursement Amount, with each amount rounded to the nearest whole cent ($0.01). If not recovered by the Securityholders’ Representative from the Representative Reimbursement Fund, any Securityholders’ Representative Expenses may be recovered by the Securityholders’ Representative directly from the Indemnifying Parties; provided that while this section allows the Securityholders’ Representative to be paid from the Representative Reimbursement Fund, this section does not relieve the Indemnifying Parties from their obligation to promptly pay such Securityholders’ Representative Expenses as they are suffered or incurred (C) receiving all documents it being understood that the Indemnifying Parties shall have no obligation to pay any Securityholders’ Representative Expenses that the Securityholders’ Representative has recovered from the Representative Reimbursement Fund), nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or certificates and making all determinationsotherwise. A decision, in their capacity as act, consent or instruction of the Securityholders’ Representative, required under including an amendment, extension or waiver of this Agreement pursuant to Sections 9.4 or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any 9.5 hereof, shall constitute a decision of the transactions contemplated by this Agreement Indemnifying Parties and shall be final, binding and conclusive upon the Escrow Agreement, including, without limitationIndemnifying Parties. Notwithstanding anything to the contrary herein, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to not incur any Securityholders’ Representative Expenses hereunder in excess of $5,000 individually or $10,000 in the Indemnifying Securityholders or liability to aggregate without the Indemnifying Securityholders prior written consent required under the engagement letter with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement transactions contemplated hereby.
(c) From and after the Effective Time, Parent shall provide to the Securityholders’ Representative any documentation or information reasonably requested by the Securityholders’ Representative in order to substantiate a claim made by an Indemnified Party pursuant to this AgreementArticle VIII.
Appears in 1 contract
Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, without any further action of the Participating Securityholders or the Company, the Securityholders, by the adoption of this Agreement, approval of the Merger, acceptance of consideration under this Agreement or the completion and execution of the letters of transmittal shall be deemed to have designated Fortis Advisors LLC, a Delaware limited liability company, as the representative of the Participating Securityholders (the “Securityholders’ Representative”).
(b) The Securityholders’ Representative may resign at any time or be replaced as provided in the Securityholders’ Representative Engagement Agreement. In the event the Securityholders’ Representative resigns from such position or is replaced, the Participating Securityholders entitled to receive at least a majority of the Aggregate Merger Consideration shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. The Participating Securityholders acknowledge and agree that the immunities and rights to indemnification of the Securityholders’ Representative Group by the Participating Securityholders shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group (as defined in Section 1.13(e)) and the Closing and/or any termination of this Agreement.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement or the delivery of the applicable Letter of Transmittal or Joinder Agreement, approval of the Merger and without any further action of the Participating Securityholders or the Company, the Participating Securityholders agree, in addition to the foregoing, that:
(i) the Securityholders’ Representative shall be appointed and constitute the true and lawful attorney-in-fact and exclusive agent of each Participating Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Securityholders’ Representative Engagement Agreement and in general to do or refrain from doing all things and to perform all acts including, without limitation, executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable by the Securityholders’ Representative in its sole discretion in connection with this Agreement and the Securityholders’ Representative Engagement Agreement. The Securityholders’ Representative hereby accepts such appointment;
(ii) the Securityholders’ Representative shall have full power authority to, after the Closing (A) execute, deliver, acknowledge, certify and authority to take file on behalf of the Participating Securityholders (in the name of any or all actions under this Agreement of the Participating Securityholders or otherwise) any and the Escrow Agreement all documents that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary may, in its sole discretion, determine to be necessary, desirable or appropriate under this Agreement and relating to the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under subject matter of this Agreement or the Escrow Agreement by Securityholders’ Representative Engagement Agreement, in such forms and containing such provisions as the Securityholders’ RepresentativeRepresentative may, interpreting all of the terms and provisions of this Agreement and the Escrow Agreementin its sole discretion, authorizing payments determine to be made with respect hereto appropriate, (B) do all things and to perform all acts as contemplated by or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred deemed advisable by the Securityholders’ Representative in connection with this Agreement or the Escrow Securityholders’ Representative Engagement Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by including amending this Agreement or the Escrow Securityholders’ Representative Engagement Agreement, waiving rights, discharging liabilities and obligations, in accordance with this Agreement or the Securityholders’ Representative Engagement Agreement, and engaging counselresolve disputes, accountants including with respect to indemnification claims hereunder, (C) give and receive notices and other communications relating to this Agreement or the Securityholders’ Representative Engagement Agreement and the transactions contemplated hereby or thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Participating Securityholder individually), (D) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement or the Securityholders’ Representative Engagement Agreement and the transactions contemplated hereby and thereby and (E) to incur and pay expenses and engage attorneys, accountants, financial and other representatives advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative in connection with the foregoing mattersSecurityholders’ Representative’s obligations, powers and authority hereunder and under the Securityholders’ Representative Engagement Agreement. Without limiting the generality of Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the full power Participating Securityholders, except as expressly provided herein and authority in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any Ancillary Agreement, schedule, exhibit or the Company Disclosure Schedule;
(iii) Parent shall be entitled to interpret rely conclusively on the instructions and decisions given or made by the Securityholders’ Representative as to any of the matters described in this Section 1.13, and no party shall have any cause of action against Parent or its Affiliates for any action taken by Parent or its Affiliates in reliance upon any such instructions or decisions;
(iv) all actions, decisions and instructions of the terms Securityholders’ Representative, including any agreement between the Securityholders’ Representative and Parent relating to the defense or settlement of any claims for which the Participating Securityholders may be required to indemnify the Parent Indemnified Parties pursuant to Section 8 hereof, shall be conclusive and binding upon each of the Participating Securityholders and such Participating Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Participating Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Securityholders’ Representative Engagement Agreement are waived;
(v) the powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Participating Securityholder and shall be binding on any successor thereto;
(vi) the provisions of this Section 1.13 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Participating Securityholder, and any references in this Agreement to a Participating Securityholder or the Participating Securityholders shall mean and include the Escrow Agreement successors to the Participating Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(vii) the Securityholders’ Representative shall be entitled to: (i) rely upon the Closing Payment Schedule, (ii) rely upon any signature believed by it to consent be genuine, and (iii) reasonably assume that a signatory has proper authorization to any amendment hereof sign on behalf of the applicable Participating Securityholder or thereof other party.
(d) At or prior to the Closing, Company shall cause to be deposited, in his or her capacity an account designated by the Securityholders’ Representative in writing at least two Business Days prior to the Closing Date, $200,000 (the “Securityholders’ Representative Reserve”). The Securityholders’ Representative Reserve may be applied as the Securityholders’ Representative; provided, howeverin its sole discretion, determines to be appropriate to defray, offset, or pay any Securityholders’ Representative Expenses (as defined in Section 1.13 (e)) incurred pursuant to this Agreement or the Securityholders’ Representative Engagement Agreement or as otherwise determined by the Advisory Group. For U.S. federal and applicable state and local Tax purposes, the Securityholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by the Participating Securityholders on the Closing Date in accordance with their Pro Rata Share. Any Tax withholding with respect to a Participating Securityholder’s deemed receipt at Closing of its Pro Rata Share of the Securityholders’ Representative Reserve shall be satisfied from such Participating Securityholder’s share of the Closing Merger Consideration and shall not reduce the Securityholders’ Representative Reserve. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Securityholders’ Representative Reserve and has no tax reporting or income distribution obligations. The Participating Securityholders will not receive any interest on the Securityholders’ Representative Reserve and assign to the Securityholders’ Representative any such interest. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and the Securityholders’ Representative will not be liable for any loss of principal of the Securityholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Subject to Advisory Group approval, the Securityholders’ Representative may not consent contribute funds to the Securityholders’ Representative Reserve from any consideration otherwise distributable to the Participating Securityholders. The balance of the Securityholders’ Representative Reserve held pursuant to this Section 1.13(d), if any, shall, at the sole discretion of the Securityholders’ Representative and at such time to be determined in the sole discretion of the Securityholders’ Representative, be deposited by the Securityholders’ Representative with the Exchange Agent and distributed to the Participating Securityholders according to each such Participating Securityholder’s Pro Rata Share. Prior to any amendment such distribution of this Agreement or the Escrow Agreement that would increase Securityholders’ Representative Reserve, the liability Securityholders’ Representative shall deliver to Parent and the Exchange Agent an updated Closing Payment Schedule (which need not be certified by an officer of a Securityholder without the prior written consent Company) setting forth the portion of such the Securityholders’ Representative Reserve payable to each Participating Securityholder.
(be) The Company, Certain Participating Securityholders have entered into an engagement agreement (the Indemnifying “Securityholders, Parent and MergerCo each hereby authorizes ’ Representative Engagement Agreement”) with the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given provide direction to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with its services under this Agreement and the Escrow Securityholders’ Representative Engagement Agreement (such Participating Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”), shall be liable to any Participating Securityholders for any action or failure to act in connection with the acceptance or administration of the Securityholders’ Representative’s responsibilities hereunder or under the Securityholders’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Participating Securityholders shall indemnify, defend and hold harmless the Securityholders’ Representative Group from and 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 “Securityholders’ Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder or under the Securityholders’ Representative Engagement Agreement provided, that in the event that any such Securityholders’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Participating Securityholders the amount of such indemnified Securityholders’ Representative Expenses to the extent attributable to such gross negligence or willful misconduct. Such Securityholders’ Representative Expenses may be recovered first, from the Securityholders’ Representative Reserve, second, from any distribution otherwise distributable to the Participating Securityholders at the time of distribution, and third, directly from the Participating Securityholders according to each Securityholder’s Pro Rata Share; provided, however, that while this Section 1.13 allows the Securityholders’ Representative to be paid from the Securityholders’ Representative Reserve, this does not relieve any Securityholder from its obligation to pay its Pro Rata Share of any such Securityholders’ Representative Expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at Law or otherwise. The Participating Securityholders acknowledge that the Securityholders’ Representative 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 Securityholders’ Representative Engagement Agreement or this Agreementthe transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions.
Appears in 1 contract
Sources: Merger Agreement (Cortexyme, Inc.)
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power Effective upon and authority to take all actions under by virtue of the Stockholder Approval approving and adopting this Agreement and the Escrow Mergers, and without any further act of any of the Company Securityholders, the Securityholders’ Representative will be hereby irrevocably appointed as the representative of the Company Securityholders and as the attorney-in-fact and agent for and on behalf of each such Company Securityholder for purposes of this Agreement that are and will be empowered to take such actions contemplated to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any under this Agreement, the Ancillary Agreements and all such other actions which he or she believes are on behalf of such Company Securityholders as it may deem necessary or appropriate under this Agreement and in connection with or to consummate the Escrow Agreementtransactions contemplated hereby or thereby, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, (i) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the Contemplated Transactions, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement and the Ancillary Agreements on behalf of such Company Securityholders’ Representative shall have the full power , including indemnifications claims, (iii) negotiating and authority to interpret all the terms and provisions executing any waivers or amendments of this Agreement and the Escrow Ancillary Agreements, and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement and to consent to any amendment hereof or thereof in his or her capacity as the Ancillary Agreements. The Securityholders’ Representative hereby accepts such appointment. No bond shall be required of the Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, Buyer Parties shall be entitled to deal exclusively with the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(iPerson(s) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby serving as the Securityholders’ Representative may in his on all such matters relating to this Agreement (including Section 8) or her sole discretion deem appropriate;
(iii) After any of the Effective Time, take such action as other Ancillary Agreements to which Buyer Parties and the Securityholders’ Representative may in his are parties. A decision, act, consent or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties instruction of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized hereunder will constitute a decision, act, consent or instruction of all Company Securityholders and will be final, binding and conclusive upon each of such Company Securityholders and Buyer Parties may rely conclusively (without further evidence of any kind whatsoever) upon any such decision, act, consent or instruction of the Securityholders’ Representative as being the decision, act, consent or instruction of each and every such Company Securityholder. No Company Securityholder will have the right to take under this Agreement object to, dissent from, protest or otherwise contest the Escrow Agreement; (C) receiving all documents same. Buyer Parties will be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or certificates and making all determinations, in their capacity as instruction of the Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have will incur no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action takentaken or suffered by any party in reliance upon any notice, decision made direction, instruction, consent, statement or instruction given other document believed by such Securityholders’ Representative to be genuine and to have been signed by the proper person (and the Securityholders’ Representative will have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement, the Securityholders’ Representative may rely on the advice of outside counsel, and the Securityholders’ Representative will not be liable to any Company Securityholder for anything done, omitted or suffered in good faith by the Securityholders’ Representative based on such advice.
(d) The Company Securityholders will severally (each based on and limited to its Pro Rata Share) but not jointly indemnify the Securityholders’ Representative and hold the Securityholders’ Representative harmless against any loss, Liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Securityholders’ Representative and arising out of or in connection with the Escrow Agreement acceptance or administration of the Securityholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other agents retained by the Securityholders’ Representative (collectively, “Representative Expenses”).
(e) At any time after the Closing Date, a majority-in-interest of Company Securityholders may, by written consent, appoint a new representative as the Securityholders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Company Securityholders of a majority-in-interest of those Company Securityholders must be delivered to Buyer not less than ten (10) days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent. For the purposes of this Section 10.2, a “majority-in-interest of the Company Securityholders” shall mean Company Securityholders having the right to receive, in the aggregate, a majority of Aggregate Consideration payable to the Company Securityholders pursuant to the terms of this Agreement.
(f) In the event that the Securityholders’ Representative becomes unable or unwilling to continue in its capacity as Securityholders’ Representative, or if the Securityholders’ Representative resigns as a Securityholders’ Representative, a majority-in-interest of the Company Securityholders may, by written consent, appoint a new representative as the Securityholders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Company Securityholders must be delivered to Parent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent.
Appears in 1 contract
Securityholders’ Representative. (a) The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall act as the sole and exclusive representative of the Principal Securityholders and the Company Noteholders hereunder (the "Securityholders’ Representative ' Representative") and shall have full power be authorized and authority empowered to take all actions under this Agreement and necessary or appropriate in the Escrow Agreement that are to be taken by good-faith judgment of the Securityholders’ Representative' Representative for the accomplishment of the terms of this Agreement. The Subject to the terms and conditions set forth herein, the Securityholders’ ' Representative shall take be the only party entitled to assert the rights of the recipients of the Merger Consideration hereunder, and Cognitronics shall be entitled to rely on any and all actions which he of the Securityholders' Representative taken on behalf of such holders. If the Securityholders' Representative is unable to perform his functions hereunder, or she believes are necessary or appropriate under this Agreement and if the Escrow Agreement, including, without limitation, executing Principal Securityholders wish to change the Escrow Agreement as Securityholders’ ' Representative, giving the holders of a majority of the Merger Consideration received hereunder shall elect, by written ballot, a successor Securityholders' Representative. The decisions and receiving actions of any notice or instruction permitted or required under this Agreement or the Escrow Agreement by successor Securityholders' Representative shall be, for all purposes, those of the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement ' Representative as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholderif originally named herein.
(b) The Company, the Indemnifying Securityholders, Parent Cognitronics and MergerCo each hereby authorizes Newco shall be entitled to rely exclusively upon any communications or writings given or executed by the Securityholders’ ' Representative to:
(i) Receive all notices and shall not be liable in any manner whatsoever for any action taken or documents not taken in reliance upon the actions taken or not taken or communications or writings given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as executed by the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ ' Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ ' Representative shall not be liable for any act done or omitted in such capacity while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted in good faith pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Securityholders' Representative shall have no reasonable access to information about the Company and the reasonable assistance of the Company's officers and employees for purposes of performing his duties and exercising his rights hereunder.
(d) Except as provided herein or in the Escrow Agreement, the Securityholders' Representative is not authorized to, and shall not, accept on behalf of any Company Noteholder any Merger Consideration to which such Company Noteholder is entitled under this Agreement and the Indemnifying Securityholders Securityholders' Representative shall not in any manner exercise, or liability seek to the Indemnifying Securityholders exercise, any voting power whatsoever with respect to shares of Company Capital Stock or Cognitronics Shares now or hereafter owned of record or beneficially by any action takensecurityholder of the Company unless the Securityholders' Representative is expressly authorized to do so in a writing signed by such securityholder of the Company.
(e) The Company Noteholders shall, decision made severally and not jointly, on a pro rata basis based on their relative allocation of the consideration paid to such Company Noteholder by Cognitronics hereunder, defend and hold the Securityholders' Representative harmless from and against any loss, damage, tax or instruction given expense that may be incurred or paid by the Securityholders’ ' Representative arising out of the administration of the Securityholders' Representative's duties (except as caused by the Securityholders' Representative's gross negligence or willful misconduct) provided that no Company Noteholder shall be liable under this clause (v) for any amount in connection with excess of the Escrow Agreement or this Agreementvalue of the Merger Consideration actually received by such Company Noteholder.
Appears in 1 contract
Sources: Merger Agreement (Cognitronics Corp)
Securityholders’ Representative. (a) The Subject to the terms and conditions of this Section 10.19, and by virtue of the approval of the Merger and this Agreement by the Stockholders, including receiving any benefits hereof and any consideration hereunder, and without any further action of any Securityholder or the Company, Shareholder Representative Services LLC is designated as of the Closing as the Securityholders’ Representative shall have full and as the true and lawful representative, attorney-in-fact and exclusive agent to act on behalf of the Securityholders for all purposes in connection with this Agreement and any related agreements. Approval of this Agreement by the Stockholders holding a majority of the outstanding Capital Stock will, to the maximum extent permitted under applicable Law (including DGCL § 251(b)), constitute knowing and irrevocable ratification and approval of such designation by the Stockholders, and authorization of the Securityholders’ Representative to serve in such capacity (including the exclusive power to negotiate and authority to take settle any and all actions disputes with Buyer or Merger Sub under this Agreement and the Escrow Agreement) and will also constitute a reaffirmation, approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Securityholders’ Representative on behalf of the Securityholders in this Agreement and the other documents delivered in connection herewith (including the Escrow Agreement), in each case, whether entered into or taken before, on or after the date of such approval. The Securityholders’ Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Capital Stock as of immediately prior to the Effective Time (other than (x) shares of Capital Stock cancelled pursuant to Section 1.04(d) and (y) Dissenting Shares) (such Persons, the “Majority Holders”). The designation of the Securityholders’ Representative and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are coupled with an interest, and are irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution, liquidation or other inability to act of any of the Securityholders. In the event that a Securityholders’ Representative has resigned or been removed in accordance with this Section 10.19(a), a new Securityholders’ Representative will promptly be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Securityholders’ Representative. Written notice of any such resignation of a Securityholders’ Representative will be delivered by the Securityholders’ Representative to Buyer promptly after such action is taken. If at any time there shall not be a Securityholder’ Representative or the Majority Holders fail to designate a successor Securityholders’ Representative, then ▇▇▇▇▇ may have a court of competent jurisdiction appoint a Securityholders’ Representative hereunder. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(b) Without limiting the foregoing, the Securityholders’ Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith (including the Escrow Agreement, the Paying Agent Agreement and the Securityholders’ Representative Engagement Agreement); provided, that the Securityholders’ Representative will have no obligation to act on behalf of the Securityholders except as expressly provided herein, in the Escrow Agreement, Paying Agent Agreement and in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any other Transaction Document, schedule, exhibit or the Disclosure Schedules. The Company, the Surviving Corporation, Buyer, Merger Sub, the Escrow Agent, the Paying Agent and the Firm will be entitled to rely on the actions taken by the Securityholders’ Representative without independent inquiry into the capacity of the Securityholders’ Representative to so act, and upon any such decision or action of the Securityholders’ Representative as being the binding decision or action of every Securityholder and neither Buyer nor Merger Sub shall be liable to any Securityholder or any other Person for any actions taken or omitted from being taken by it in accordance with or reliance upon any such decision or action of the Securityholders’ Representative. The Securityholders’ Representative shall take be entitled to: (i) rely upon the Estimated Closing Statement, (ii) rely upon any signature believed by it to be genuine, and all actions which he (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or she believes are necessary or appropriate other party. All actions, notices, communications and determinations by the Securityholders’ Representative to carry out its functions under this Agreement and Agreement, the Escrow Agreement, includingthe Paying Agent Agreement, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Representative Engagement Agreement or any other related agreements will conclusively be deemed to have been authorized by, and will be binding upon, the Escrow Agreement Securityholders and their successors as if expressly confirmed and ratified in writing by the Securityholders’ Representative, interpreting and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the terms and provisions of Securityholders’ Representative taken in good faith under this Agreement and Agreement, the Paying Agent Agreement, the Escrow Agreement, authorizing payments the Securityholders’ Representative Engagement Agreement or any other related agreements are waived. Certain Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by provide direction to the Securityholders’ Representative in connection with this Agreement or and any other related agreements (such Securityholders and their individual Representatives, including their services under this Agreement, the Escrow Agreement, defending all claims arising the Paying Agent Agreement, the Securityholders’ Representative Engagement Agreement, collectively hereinafter referred to as the “Advisory Group”). Neither the Advisory Group, the Securityholders’ Representative nor any of its officers, directors, employees, partners (general or limited), members, managers, contractors, agents or Advisors (collectively, the “Representative Group”) will have any liability in connection with its services pursuant to Section 3.5 (an “NWC Claim”)this Agreement and any related agreements except to the extent resulting from its gross negligence, defending all indemnity claims against the Escrow Amount fraud or willful misconduct. The Securityholders’ Representative shall not be liable for any action or omission pursuant to Section 9.2 (an “Indemnity Claim”)the advice of counsel. The Securityholders’ Representative will be entitled to engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder, consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, under the Securityholders’ Representative Engagement Agreement or any other related agreements and engaging counselwill be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative Group will be entitled to full reimbursement for all reasonable expenses, accountants disbursements, advances, losses and liabilities (including fees and disbursements of its Advisors) incurred by or other representatives on behalf of the Representative Group, and the Securityholders shall indemnify the Representative Group against any reasonable, documented, and out-of-pocket losses, liabilities and expenses arising out of or in connection with this Agreement or any related agreements, including the foregoing matterscosts and expenses of investigation, defense, settlement or adjudication of any Proceeding, from the Securityholders (collectively, “Representative Expenses”), in each case as such Representative Expense is suffered or incurred; provided, that in the event that any such Representative Expense is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Securityholders the amount of such indemnified Representative Expense to the extent attributable to such gross negligence or willful misconduct. Without limiting the generality In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, Representative Expenses may be recovered by the Securityholders’ Representative (i) from the funds in the Representative Holdback Amount and (ii) from any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders (provided that the Securityholders’ Representative may recover directly from the Securityholders to the extent funds are not readily available). Notwithstanding the foregoing, while the Securityholders’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred. Each Securityholder will be responsible for its Pro Rata Portion of any amount owed to the Securityholders’ Representative in accordance with this Section 10.19(b). Notwithstanding anything herein to the contrary, the total amount of Losses for which each Securityholder shall be obligated to pay pursuant to this Section 10.19(b) shall not exceed the Pro Rata Portion of any amount actually paid or payable to such Securityholder. The Securityholders acknowledge that the Securityholders’ Representative shall not be required to advance, 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 in connection with this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Securityholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholders’ Representative shall have not be required to take any action unless the full power Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and authority liabilities which may be incurred by the Securityholders’ Representative in performing such actions. The Securityholders and the Securityholders’ Representative agree that the relationship created herein is not to interpret all be construed as a joint venture or any form of partnership between or among the terms and Securityholders’ Representative or any Securityholder for any purpose of U.S. federal or state Law, including federal, state or non-U.S. income Tax purposes. Neither the Securityholders’ Representative nor any of its Affiliates owes any fiduciary or other duty to any Securityholder. 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 Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholders’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholders’ Representative or the termination of this Agreement Agreement.
(c) The Representative Holdback Amount shall be held by the Securityholders’ Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholders’ Representative for any Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Agreement, the Paying Agent Agreement, the Securityholders’ Representative; providedRepresentative Engagement Agreement or any other related agreements or (ii) as otherwise determined by the Advisory Group. The Securityholders’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders’ Representative is not providing any investment supervision, howeverrecommendations or advice and shall have no responsibility or liability for any loss of principal of the Representative Holdback Amount other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Holdback Amount and has no Tax reporting or income distribution obligations. The Securityholders will not receive any interest or earnings on the Representative Holdback Amount and irrevocably transfer and assign to the Securityholders’ Representative any such ownership right that the Securityholders may have had in any such interest or earnings. Subject to Advisory Group approval, the Securityholders’ Representative may not consent contribute funds to the Representative Holdback Amount from any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes consideration otherwise distributable to the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby . As soon as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given reasonably determined by the Securityholders’ Representative in connection with that the Escrow Agreement or this AgreementRepresentative Holdback Amount is no longer required to be withheld, the Securityholders’ Representative shall distribute the remaining Representative Holdback Amount (if any) to the Paying Agent for further distribution to the Securityholders. For tax purposes, the Representative Holdback Amount will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
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Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in this Agreement (including Sections 1.11 (Exchange/Payment), 1.12 (Post Closing Adjustment to Closing Merger Consideration Amount), 1.13 (Post-Closing Distributions), 10.1 (Amendment) and 5.9 (Registration Statement)), the Participating Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement or the completion and execution of the Letters of Transmittal shall be deemed to have designated Fortis Advisors LLC as the representative of the Participating Securityholders (the “Securityholders’ Representative”).
(b) The Securityholders’ Representative may resign at any time. In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Participating Securityholders who hold at least a majority in interest of the Ownership Percentages at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement or the delivery of the Letter of Transmittal contemplated by Section 1.11 (Exchange/Payment), the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Securityholders’ Representative shall be appointed and constitute the exclusive agent and true and lawful attorney-in-fact of each Participating Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement and the agreements ancillary hereto. The Securityholders’ Representative hereby accepts such appointment;
(ii) the Securityholders’ Representative shall have full power and authority to take (A) execute, deliver, acknowledge, certify and file on behalf of the Participating Securityholders (in the name of any or all actions under this Agreement and of the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take Participating Securityholders or otherwise) any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by documents that the Securityholders’ Representative may, in connection with this Agreement its sole discretion, determine to be necessary, desirable or the Escrow Agreementappropriate, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent in such forms and its agents regarding containing such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, provisions as the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof may, in his or her capacity as Securityholders’ Representative; providedits sole discretion, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or determine to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith appropriate, (B) give and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants notices and other advisors and incur such other expenses in connection with communications relating to this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as (except to the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in extent that this Agreement contemplates that such notice or in any document delivered communication shall be given or received by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; Participating Securityholder individually), (C) receiving take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all documents matters and disputes arising out of or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary related to carry out any of the transactions contemplated by this Agreement and the Escrow Agreementtransactions contemplated hereby and thereby, including, without limitation, including the defense and/or settlement payment of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.Adjustment
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Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she it believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or and the Escrow Agreement, defending all claims arising pursuant to Section 3.5 3.4 (an a “NWC Final Closing Adjustment Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or and the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her its capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying SecurityholdersMembers, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her its sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their its capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X IX and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative is not an agent of the Securityholders and shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.
(d) The Securityholders’ Representative shall be indemnified for and shall be held harmless against any loss, liability or expense incurred by the Securityholders’ Representative or any of its Affiliates and any of its respective partners, directors, officers, employees, agents, Members, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Securityholders’ Representative’s conduct as Securityholders’ Representative, other than losses, liabilities or expenses resulting from the Securityholders’ Representative’s willful misconduct in connection with its performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid by the Securityholders. The Securityholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Securityholders’ Representative in accordance with such advice, the Securityholders’ Representative shall not be liable to the Securityholders or the Escrow Agent or any other person. In no event shall the Securityholders’ Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Escrow Amount.
(e) The Securityholders’ Representative shall have reasonable access to information of and concerning any Final Closing Adjustment and/or any Indemnity Claim and which is in the possession, custody or control of Parent or the Surviving Company and the reasonable assistance of Parent’s and the Surviving Company’s officers and employees for purposes of performing the Securityholders’ Representative duties under this Agreement or the Escrow Agreement and exercising its rights under this Agreement and the Escrow Agreement, including for the purpose of evaluating any Final Closing Adjustment Claim and Indemnity Claim against the Escrow Amount by Parent; provided that the Securityholders’ Representative shall treat confidentially and not, except in connection with enforcing its rights under this Agreement and the Escrow Agreement, disclose any nonpublic information from or concerning any Indemnity Claim or any Final Closing Adjustment Claim to anyone (except to the Securityholders’ Representative’s attorneys, accountants or other advisers, to Securityholders and on a need-to-know basis to other individuals who agree to keep such information confidential).
(f) In the performance of its duties hereunder, the Securityholders’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Securityholder or any party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(g) A majority in interest of the Securityholders shall have the right at any time during the term of the Escrow Agreement to remove the then-acting Securityholders’ Representative to appoint a successor Securityholders’ Representative reasonably acceptable to Parent; provided, however, that neither such removal of the then-acting Securityholders’ Representative nor such appointment of a successor Securityholders’ Representative shall be effective until the delivery to the Escrow Agent of executed counterparts of a writing signed by each such Securityholder with respect to such removal and appointment, together with an acknowledgement signed by the successor Securityholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Securityholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Securityholders’ Representative. For all purposes hereunder, a majority in interest of the Securityholders shall be determined on the basis of each Securityholder’s allocation of the Escrow Amount as set forth on the Escrow Allocation Schedule. Each successor Securityholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholders’ Representative, and the term “Securityholders’ Representative” as used herein and in the Escrow Agreement shall be deemed to include any interim or successor Securityholders’ Representative.
(h) Subject to Section 9.6(g), the appointment of the Securityholders’ Representative hereunder is irrevocable and any action taken by the Securityholders’ Representative pursuant to the authority granted in this Section 9.6 shall be effective and absolutely binding as the action of the Securityholders’ Representative under this Agreement or the Escrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Athenahealth Inc)
Securityholders’ Representative. (a) Each Company Securityholder, by virtue of the approval of the Merger and this Agreement and without any further action of any of the Company Securityholders or the Company, hereby irrevocably constitutes and appoints Fortis Advisors LLC as his, her or its sole, exclusive, true and lawful agent and attorney-in-fact (the “Securityholders’ Representative”), with full power of substitution to act in such Company Securityholder’s name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement or the Escrow Agreement, and to act on such Company Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents, on such Company Securityholder’s behalf, as the Securityholders’ Representative deems necessary or appropriate in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the power: (i) to execute and deliver this Agreement and any and all amendments, waivers or modifications hereof; (ii) to waive any condition to the obligations of such Company Securityholder to consummate the transactions contemplated by this Agreement; (iii) to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of such Company Securityholder that the Securityholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Escrow Agreement; (iv) to receive on behalf of, and to distribute (after payment of (A) any unpaid expenses chargeable to the Company Securityholders or the Company prior to the Closing in connection with the transactions contemplated by this Agreement, and (B) amounts payable by the Company Securityholders pursuant to Section 1.5), all amounts payable to such Company Securityholder under the terms of this Agreement or the Escrow Agreement; (v) with respect to any claims for indemnification made by Parent hereunder, agree to, object to, negotiate, enter into settlements and compromises of, and demand litigation of and comply with orders and awards of courts with respect to such claims; and (vi) to do or refrain from doing any further act or deed on behalf of such Company Securityholder as is assigned, delegated or charged to the Securityholders’ Representative or that the Securityholders’ Representative otherwise deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement, the Escrow Agreement or the Securityholders’ Representative engagement agreement, as fully and completely as such Company Securityholder could do if personally present. All such actions set forth or described in this Section 1.14(a) will be deemed to be facts ascertainable outside this Agreement and will be binding on the Company Securityholders. Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein and in the Escrow Agreement the Securityholders’ Representative engagement agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule.
(b) The appointment of the Securityholders’ Representative and the powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder (i) are deemed coupled with an interest and are 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 any assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount or Earn-out Amount. Parent, its Affiliates and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholders’ Representative on behalf of the Company Securityholders in all matters referred to herein. All notices delivered by Parent or the Company (following the Closing) to the Securityholders’ Representative (whether pursuant hereto or otherwise) for the benefit of the Company Securityholders will constitute notice to the Company Securityholders. The Securityholders’ Representative will act for the Company Securityholders on all of the matters set forth in this Agreement in the manner the Securityholders’ Representative believes to be in the best interest of the Company Securityholders as a whole and consistent with its obligations under this Agreement, but the Securityholders’ Representative will not be responsible to the Company Securityholders for any loss or damages it or they may suffer by reason of the performance by the Securityholders’ Representative of its duties under this Agreement, other than loss or damage arising from fraud by the Securityholders’ Representative.
(c) If the Securityholders’ Representative resigns, which it may do at any time, or is otherwise similarly unable to carry out its duties hereunder, then the Company Securityholders with an aggregate Pro Rata Portion of 50.1% (the “Requisite Company Securityholders”) will, within five Business Days, appoint a new Securityholders’ Representative. The Requisite Company Securityholders may at any time, for any reason or no reason, remove the Securityholders’ Representative. If at any time there is not a Securityholders’ Representative and the Company Securityholders fail to designate in writing a successor Securityholders’ Representative within five Business Days after receipt of a written request delivered by Parent to the Requisite Company Securityholders requesting that a successor Securityholders’ Representative be designated in writing, then Parent may petition a court of competent jurisdiction to appoint a new Securityholders’ Representative hereunder. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(d) All actions, decisions and instructions of the Securityholders’ Representative taken, made or given pursuant to the authority granted to the Securityholders’ Representative pursuant to this Section 1.14, the Escrow Agreement or the Securityholders’ Representative engagement agreement will be conclusive and binding upon each Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and no Company Securityholder will have the right to object, dissent, protest or otherwise contest the same. All defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith in accordance with this Agreement, the Escrow Agreement or the Securityholders’ Representative engagement agreement are waived. Each Company Stockholder, by the execution and delivery of a Letter of Transmittal, each Company Optionholder, by the execution and delivery of any Option Termination Agreement, and each Company Warrantholder by the execution and delivery of any Warrant Termination Agreement, will be deemed to have approved, confirmed and ratified any action taken by the Securityholders’ Representative in the exercise of the power-of-attorney granted to the Securityholders’ Representative pursuant to this Section 1.14, which power-of-attorney, being coupled with an interest, is irrevocable and will survive the death, incapacity or incompetence of each such Company Securityholder.
(e) The Securityholders’ Representative shall have full power and authority Group will not be liable to take all actions under this Agreement and the Escrow Agreement that are to be taken Company Securityholders for any act done or omitted hereunder in its capacity as the Securityholders’ Representative unless caused by fraud by the Securityholders’ Representative. The Securityholders’ Representative will not have any fiduciary, agency or other duties to the Company Securityholders and its only obligations will be as expressly set forth in this Agreement. The Securityholders’ Representative shall take be entitled to: (i) rely upon the Consideration Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and all actions which he (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or she believes are necessary other party. The Securityholders’ Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company Securityholders hereunder, and Parent and the Company agree that they will not look to the underlying assets of the Securityholders’ Representative for the satisfaction of any obligations of the Company Securityholders (or appropriate any of them). The Company Securityholders will severally, in accordance with their respective Pro Rata Portions (and not jointly), indemnify and defend the Securityholders’ Representative Group and hold the Securityholders’ Representative Group on demand harmless against any damages, losses, claims, liabilities, fees, costs, expenses, judgments, fines or amounts paid in settlement incurred by the Securityholders’ Representative Group and arising out of or in connection with the acceptance, performance or administration of the Securityholders’ Representative duties hereunder , under this Agreement and the Escrow Agreement, includingor under any Securityholders’ Representative engagement agreement including the reasonable fees and expenses of any legal counsel, without limitationaccountants, executing auditors and other advisors or skilled professionals retained by the Securityholders’ Representative (collectively, the “Securityholders’ Representative Expenses”), in each case as such fees and expenses are incurred, which rights will survive the resignation or removal of the Securityholders’ Representative. The Securityholders’ Representative will be entitled to retain its own counsel and other professional advisers in connection with the acceptance, performance or administration of the Securityholders’ Representative’s duties hereunder or under the Escrow Agreement as or the exercise of any of the Securityholders’ Representative’s rights hereunder, giving and receiving will further be entitled to withdraw from the Securityholders’ Representative Amount the amount of any notice fees and expenses of such counsel and professionals, and in the event that the Securityholders’ Representative Amount has been fully depleted, the amount of such fees and expenses may be withdrawn from any portion of the Escrow Amount otherwise distributable to the Company Securityholders, at the time of such distribution (provided, that nothing in this Section 1.14(e) shall relieve the Company Securityholders of their obligation to promptly pay such fees and expenses as they are suffered or instruction permitted incurred, nor prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise). The Company Securityholders acknowledge that the Securityholders’ Representative 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’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its reasonable determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions. In the event of any ambiguity or uncertainty hereunder, the Securityholders’ Representative may, in its sole and reasonable discretion, refrain from taking any action, unless the Securityholders’ Representative receives written instructions, signed by the Requisite Company Securityholders, that eliminate such ambiguity or uncertainty.
(f) If (i) the Securityholders’ Representative elects (1) to assume and control the defense and/or management of any Third Party Claim at the expense of Company Securityholders in accordance with Section 8.1(f) hereof or (2) to take any other action under this Agreement or the Escrow Agreement by that may require the payment of amounts out of the Securityholders’ Representative Amount, including for any attorneys, accountants, auditors or other advisors, and (ii) the Securityholders’ Representative, interpreting all ’s good faith estimate of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments reasonable expenses to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or any such action exceeds the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality balance of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, howeverAmount, the Securityholders’ Representative may not consent refrain from taking any such action until such time as the Securityholders’ Representative, upon seven days’ notice to any amendment of this Agreement or the Escrow Agreement that would increase Company Securityholders, receives written commitments signed by the liability of a Securityholder without the prior written consent Requisite Company Securityholders for payment of such Securityholder.
(b) The Companyexpenses, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes in which case all Company Securityholders will pay their Pro Rata Portion of such estimated expenses. Any such initial notice by the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services Company Securityholders will include a statement of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as balance of the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After Amount, the Effective Timegood faith estimate of the reasonable expenses to be incurred by the Securityholders’ Representative, take such action as the amount by which the estimated expenses to be incurred exceed the balance of the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving Amount, and each Company Securityholder’s Pro Rata Portion of such excess expense amount. Each Company Securityholder will deliver its Pro Rata Portion of any inaccuracies in excess expense amount by wire transfer of immediately available funds, using the representations or warranties of Parent or MergerCo contained in this Agreement or wire instructions identified in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as initial notice, no later than ten days following the date on which the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all gives such actions as may be necessary to carry out any Company Securityholder notice of the transactions contemplated receipt of commitments signed by this Agreement and the Escrow AgreementRequisite Company Securityholders for payment of such excess expenses; provided, includinghowever, without limitationthat no Company Securityholder will be required to make any payments, individually or in the defense and/or settlement of any claims for which indemnification is sought aggregate, pursuant to this Article X and any waiver Section 1.14(f) in excess of any obligation the Aggregate Merger Consideration previously received by such Company Securityholder. Any amounts thus paid will increase the balance of Parent or the Surviving Company.
(c) Securityholders’ Representative Amount. The Securityholders’ Representative shall may invest the Securityholders’ Representative Amount as it determines in its discretion.
(g) Certain Company Securityholders (the “Advisory Group”) have no duties concurrently herewith entered into a letter agreement with Securityholders’ Representative regarding direction to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given be provided by the Advisory Group to Securityholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholders’ Representative engagement agreement. Neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”) shall incur any liability to the Company Securityholders while acting in good faith and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under any Securityholders’ Representative engagement agreement (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), even if such act or omission constitutes negligence on the part of the Advisory Group or one of its members. This indemnification and exculpation shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (BIO-TECHNE Corp)
Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.1, 1.10, 1.12 and 8, the Participating Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement and/or the completion and execution of the Joinder Agreement, Letter of Transmittal and/or Option Termination Agreement shall be deemed to have designated Shareholder Representative Services LLC as the agent, attorney-in-fact and representative of the Participating Securityholders (the “Securityholders’ Representative”) for all purposes in connection with this Agreement and the Ancillary Agreements.
(b) The Securityholders’ Representative may resign at any time. In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Participating Securityholders who hold at least a majority in interest of the Ownership Percentages as of the Closing Date shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement and/or the delivery of the Written Consent, Joinder Agreement, Option Termination Agreement and/or Letter of Transmittal, as applicable, the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Securityholders’ Representative shall be appointed and constituted the true and lawful attorney-in-fact of each Participating Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. The Securityholders’ Representative hereby accepts such appointment;
(ii) the Securityholders’ Representative shall have full power authority to, after the Closing (A) execute, deliver, acknowledge, certify and authority to take file on behalf of the Participating Securityholders (in the name of any or all actions under this Agreement of the Participating Securityholders or otherwise) any and the Escrow Agreement all documents that are to be taken by the Securityholders’ Representative. The Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Representative shall take may, in its sole discretion, determine to be appropriate, including the Escrow Agreement, (B) do all things and to perform all acts, including amending the Ancillary Agreements, waiving rights, discharging liabilities and obligations, making all decisions relating to the determination of the Upfront Merger Consideration Amount pursuant to Section 1.10 and the disbursement (if any) of the Escrow Funds, Contingent Payments or any and all actions which he positive Adjustment Amount (or she believes are necessary or appropriate under any portion thereof) in accordance with this Agreement and the Escrow Agreement, includingas applicable, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving (C) give and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms receive notices and provisions of other communications relating to this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Participating Securityholder individually), (D) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby as and (E) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative may in his or her sole discretion deem appropriatefor the accomplishment of the foregoing;
(iii) After Parent shall be entitled to rely conclusively on the Effective Time, take such action as instructions and decisions given or made by the Securityholders’ Representative may as to any of the matters described in his this Section 1.11, and no party or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties Participating Securityholder shall have any cause of action against Parent or MergerCo contained in this Agreement or in its Affiliates for any document delivered action taken by Parent or MergerCo pursuant hereto; its Affiliates in reliance upon any such instructions or decisions;
(Biv) taking such other action as all actions, decisions and instructions of the Securityholders’ Representative, including any agreement between the Securityholders’ Representative is authorized and Parent relating to take under this Agreement or the determination of the Upfront Merger Consideration Amount pursuant to Section 1.10 and the disbursement of the Escrow Agreement; Funds (Cor any portion thereof) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by accordance with this Agreement and the Escrow Agreement, including, without limitation, the determination or dispute of the Contingent Payments or the defense and/or or settlement of any claims for which indemnification is sought the Participating Securityholders may be required to indemnify the Parent Indemnified Parties pursuant to this Article X Section 8 hereof, shall be conclusive and binding upon each of the Participating Securityholders, and no Participating Securityholders shall have any waiver cause of any obligation of Parent or action against the Surviving Company.
(c) The Securityholders’ Representative and the Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to not be liable for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, except for fraud, gross negligence, or willful misconduct on the part of the Securityholders’ Representative;
(v) the provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Participating Securityholder may have in connection with the Transactions Contemplated by this Agreement; and
(vi) the provisions of this Section 1.11 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Participating Securityholder, and any references in this Agreement to a Participating Securityholder or the Participating Securityholders shall mean and include the successors to the Participating Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) At the Closing, Parent shall cause to be deposited, in an account designated by the Securityholders’ Representative in writing at least two Business Days prior to the Closing Date, $250,000 (the “Securityholders’ Representative Reserve”). In addition, 10% of each cash Milestone Payment shall be deposited into the Securityholders’ Representative Reserve (an “Additional Reserve Deposit”); provided, that in no event shall an Additional Reserve Deposit increase the Securityholders’ Representative Reserve above $1,000,000 and in the event an Additional Reserve Deposit would otherwise cause the Securityholders’ Representative Reserve to exceed $1,000,000 then the amount of such Additional Reserve Deposit shall be reduced to the extent necessary to cause the Securityholders’ Representative Reserve to be $1,000,000 following such deposit. The Securityholders’ Representative Reserve may be applied as the Securityholders’ Representative, in his, her or its sole discretion, determines to be appropriate to defray, offset, or pay any reasonable fees, costs, liabilities charges, losses, fines, damages, claims, forfeitures, actions or expenses that the Securityholders’ Representative incurred in connection with the Transactions Contemplated by this Agreement and the Ancillary Agreements, including in connection with the matters contemplated by Sections 1.10 and 1.12 and the evaluation or defense of any claim for indemnification under this Agreement. For income U.S. federal and applicable state and local Tax purposes, the Securityholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by the Participating Securityholders on the Closing Date in accordance with their Ownership Percentages. The Participating Securityholders will not receive any interest or earnings on the Securityholders’ Representative Reserve and irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholders’ Representative will not be liable for any loss of principal of the Securityholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The balance of the Securityholders’ Representative Reserve held pursuant to this Section 1.11(d), if any, shall, at the sole discretion of the Securityholders’ Representative and at such time to be determined in the sole discretion of the Securityholders’ Representative, be deposited by the Securityholders’ Representative with the Payment Agent and distributed to the Participating Securityholders according to each such Participating Securityholder’s Ownership Percentage. Prior to any such distribution of the Securityholders’ Representative Reserve, the Securityholders’ Representative shall deliver to Parent and the Payment Agent a payment schedule (which need not be certified by an officer of the Company) (the “Representative Distribution Schedule”) setting forth the portion of the Securityholders’ Representative Reserve payable to each Participating Securityholder.
(e) As between the Participating Securityholders and the Securityholders’ Representative, the Securityholders’ Representative shall not be liable for any act done or omitted hereunder as Securityholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Securityholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Participating Securityholders will indemnify, defend and hold harmless the Securityholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Securityholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, 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 directly caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Participating Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Participating Securityholders, any such Representative Losses may be recovered by the Securityholders’ Representative from (i) the funds in the Securityholders’ Representative Reserve; (ii) the amounts in the Escrow Funds at such time as remaining amounts would otherwise be distributable to the Participating Securityholders; (iii) the Contingent Payments, to the extent actually paid; and (iv) any other funds that become payable to the Participating Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Participating Securityholders; provided, that while this section allows the Securityholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Participating Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Participating Securityholders or otherwise. 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 Participating Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholders’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (PTC Therapeutics, Inc.)
Securityholders’ Representative. (a) The Company Securityholders’ Representative shall have full power and authority to take all actions under , by approving this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The transactions contemplated hereby, hereby irrevocably appoint Fortis Advisors LLC as Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and in accordance with the Escrow Agreement, including, without limitation, executing terms of the Escrow Agreement securityholders’ representative agreement attached hereto as Exhibit I (the “Securityholders’ RepresentativeRepresentative Agreement”), giving including to act as their agent and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions attorney-in-fact for purposes of this Agreement and the Escrow Agreement, authorizing payments consent to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred the taking by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending of any and all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent actions and the Escrow Agent making of any decisions required or permitted to be taken by it under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement (including the exercise of the power to authorize delivery to Parent of the Escrow Funds in satisfaction of claims by Parent or otherwise, agree to, negotiate, enter into settlements and compromises of and demand arbitration, and comply with orders of courts and awards of arbitrators with respect to such claims or otherwise, resolve any claims made pursuant to Section 10 and the Escrow Agreement, and to consent to any amendment hereof take all actions necessary or thereof appropriate in his or her capacity as Securityholders’ Representative; provided, however, the judgment of the Securityholders’ Representative for the accomplishment of the foregoing) and waive any and all defenses which may not consent be available to any amendment contest, negate or disaffirm the action of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or taken in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising good faith under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection . Parent shall be entitled to deal exclusively with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized on all matters relating to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, and shall be entitled to rely conclusively (without limitation, the defense and/or settlement further evidence of any claims for which indemnification is sought pursuant kind whatsoever) on any document executed or purported to this Article X and any waiver be executed on behalf of any obligation Company Securityholder by the Securityholders’ Representative, and on any other action taken or purported to be taken on behalf of any Company Securityholder by the Securityholders’ Representative, as fully binding upon such Company Securityholder. The rights and obligations of the Securityholders’ Representative shall be as set forth herein and in the Securityholders’ Representative Agreement. If the Securityholders’ Representative shall become unable to fulfill its responsibilities as agent of the Company Securityholders, then the Company Securityholders who held a majority of the voting Company Capital Stock immediately prior to the Merger (the “Requisite Former Company Securityholders”) are authorized and shall, within 10 days after disability or resignation, appoint a successor agent and, promptly thereafter, shall notify Parent or of the Surviving Companyidentity of such successor. Any such successor shall become the “Securityholders’ Representative” for purposes of this Agreement and the Escrow Agreement. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Requisite Former Company Securityholders.
(cb) The Escrow Agent shall hold the Representative Reimbursement Fund in trust for the benefit of the Company Securityholders. The Securityholders’ Representative shall have no duties be permitted to withdraw funds from the Representative Reimbursement Fund to reimburse it for any Representative Expenses or Damages incurred hereunder. If the Representative Reimbursement Fund is insufficient to cover such Representative Expenses or Damages, the Securityholders’ Representative shall, at its election, recover such amounts from any distribution of the Escrow Funds or Contingent Consideration otherwise distributable to the Indemnifying Company Securityholders at the time of distribution, or liability to directly from the Indemnifying Company Securityholders in accordance with respect to any action taken, decision made their Initial Pro Rata Portion. Upon the termination of the Contingent Consideration Period (or instruction given such later date as is reasonably determined by the Securityholders’ Representative in connection with Representative), the Escrow Agreement Agent shall transfer to the Paying Agent, for distribution to the Company Securityholders in accordance with their Initial Pro Rata Portion, all amounts then remaining in the Representative Reimbursement Fund. The Company Securityholders acknowledge that the Securityholders’ Representative shall not be required to expend or this Agreementrisk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or administration of the Securityholders’ Representative’s duties. For the avoidance of doubt, under no circumstances shall the Company, Parent or any of their Affiliates be liable, directly or indirectly, for (i) any costs, expenses or fees incurred by, or any Damages suffered or incurred by, the Securityholders’ Representative, or (ii) any Damages suffered or incurred by any Person arising out of or related to the Securityholders’ Representative actions or failures to act.
Appears in 1 contract
Sources: Merger Agreement (Medicines Co /De)
Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.6 (Post-Closing Adjustment to Upfront Consideration Amount), 1.9 (Contingent Consideration) and Section 6 (Indemnification), the Sellers, by the execution of this Agreement, shall be deemed, on behalf of the Sellers and all Participating Securityholders, to have designated SHR Services LLC as the representative of the Participating Securityholder (the “Securityholders’ Representative”).
(b) In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Sellers who hold at least a majority in interest of the Ownership Percentages held by the Sellers at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their execution of this Agreement, each Seller shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Securityholders’ Representative shall be appointed and constituted the true and lawful attorney-in-fact of such Seller and each of the Participating Securityholders, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including, without limitation, executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. The Securityholders’ Representative hereby accepts such appointment;
(ii) the Securityholders’ Representative shall have full power authority to, after the Closing (A) execute, deliver, acknowledge, certify and authority to take file on behalf of the Participating Securityholders (in the name of any or all actions under this Agreement of the Participating Securityholders or otherwise) any and the Escrow Agreement all documents that are to be taken by the Securityholders’ Representative. The Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Representative shall take may, in its sole discretion, determine to be appropriate, including the Escrow Agreement, (B) do all things and to perform all acts, including amending the Ancillary Agreements, waiving rights, discharging liabilities and obligations, making all decisions relating to the determination of the Upfront Consideration Amount pursuant to Section 1.6 (Post-Closing Adjustment to Upfront Consideration Amount) and the disbursement of the Escrow Funds (or any and all actions which he or she believes are necessary or appropriate under portion thereof) in accordance with this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving (C) give and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses receive notices and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant communications relating to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or and thereby as (except to the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in extent that this Agreement contemplates that such notice or in any document delivered communication shall be given or received by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinationsParticipating Securityholder individually), in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such take or refrain from taking any actions as may be necessary (whether by negotiation, settlement, litigation or otherwise) to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent resolve or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the Escrow Agreement or this Agreement.settle all
Appears in 1 contract
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power Indemnifying Securityholders will authorize, designate and authority to take all actions under appoint, as part of their approval and adoption of this Agreement and the Escrow Agreement that are to be taken by transactions contemplated herein, the Securityholders’ Representative. The Securityholders’ Representative shall to act as the sole and exclusive agent, attorney-in-fact and representative of each of the Indemnifying Securityholders by the consent of the Indemnifying Securityholders and as such is hereby authorized and directed to (i) take any and all actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Indemnifying Securityholders and making any and all determinations required by this Agreement) which he may be required in carrying out his, her or she believes are necessary or appropriate its duties under this Agreement and the Escrow Agreement, including(ii) bring any and all claims against Parent or its Affiliates for breach of any of their respective representations, without limitationwarranties, executing obligations or covenants or other rights of the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required Indemnifying Securityholders under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments (iii) exercise such other rights, power and authority as are authorized, delegated and granted to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with under this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matterstransactions contemplated hereby and thereby, and (iv) exercise such rights, power and authority as are incidental to the foregoing. Without limiting the generality of Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the full Indemnifying Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any Ancillary Agreement, schedule, exhibit or the Disclosure Schedule. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Securityholders’ Representative consistent therewith shall be absolutely and irrevocably binding on each Indemnifying Securityholder as if such Indemnifying Securityholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Indemnifying Securityholder’s individual capacity. The powers, immunities and rights to interpret all indemnification granted to the terms Securityholders’ Representative Group hereunder: (i) are coupled with an interest and provisions shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Indemnifying Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(b) Certain Indemnifying Securityholders have entered into an engagement agreement with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement and the Escrow Agreement and (such Indemnifying Securityholders, including their individual representatives, collectively hereinafter referred to consent to any amendment hereof or thereof in his or her capacity as the “Advisory Group”). The Securityholders’ Representative; providedRepresentative shall have no duties towards the Indemnifying Securityholders, however, and neither the Securityholders’ Representative may not consent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”) shall incur any Liability to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Indemnifying Securityholders shall have no claims, including those that may arise in the future, against the Securityholders’ Representative to:
(i) Receive all notices for any action or documents given inaction taken or not taken by him in connection with his, her or its service as the Securityholders’ Representative, except to be given the extent that such action or inaction shall have been held by a court of competent jurisdiction to constitute willful misconduct. The Indemnifying Securityholders shall severally indemnify, defend and hold the Securityholders’ Representative Group harmless against any loss, Liability, claim, damage, fee, cost, fine, judgment, amount paid in settlement or expense incurred without gross negligence or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of his, her or its duties hereunder, including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Securityholders’ Representative and in connection with seeking recovery from insurers (the “Securityholders’ Representative Expenses”). Such Securityholders’ Representative Expenses may be recovered first, from the Reserve, second, from any distribution of the Escrow Fund otherwise distributable to the Indemnifying Securityholders at the time of distribution, and third, directly from the Indemnifying Securityholders. The Indemnifying Securityholders acknowledge that the Securityholders’ Representative 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 hereto or to this Agreement, the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Companythereby.
(c) The Securityholders’ Representative shall have no reasonable access to information about the Initial Surviving Corporation and the Surviving Company and the reasonable assistance of the Surviving Company’s executive officers for purposes of performing his, her or its duties to the Indemnifying Securityholders and exercising his, her or liability to the Indemnifying Securityholders with respect to any action takenits rights hereunder; provided, decision made or instruction given by that the Securityholders’ Representative shall treat confidentially and not disclose any nonpublic information from or about Parent or its Affiliates to anyone (except on a need to know basis to individuals who agree in connection writing to treat such information confidentially); provided, further, that such access and assistance shall not interfere with or adversely affect the Surviving Company’s business. The Securityholders’ Representative 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 Securityholder or other party
(d) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute a decision of all Indemnifying Securityholders and shall be final, binding and conclusive upon each such Indemnifying Securityholder and such Indemnifying Securityholder’s successors, and all defenses which may be available to any Indemnifying Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement are waived.
(e) In the event the Securityholders’ Representative becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Stockholders (acting by a written instrument signed by Stockholders who held, as of immediately prior to the Closing, a majority of the then outstanding shares of Company Common Stock) shall select another representative to fill the vacancy of the Securityholders’ Representative, and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement. The Securityholders’ Representative may only be removed upon delivery of written notice to Parent signed by Stockholders who, as of immediately prior to the Closing, held a majority (by voting power) of the then outstanding shares of Company Capital Stock. The Securityholders’ Representative shall provide Parent prompt written notice of any replacement of the Securityholders’ Representative, including the identity and address of the new Securityholders’ Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Juno Therapeutics, Inc.)
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all By virtue of the terms adoption and provisions approval of this Agreement and the Escrow AgreementJoinder Agreements, authorizing payments without any further action by any Seller Securityholder or Seller, Seller and the Seller Securityholders hereby irrevocably constitute and appoint SCP Management LLC as the initial true and lawful agent and attorney-in-fact (the “Securityholders’ Representative”) of the Seller Securityholders with full authority and power of substitution to act in the name, place and stead of the Seller Securityholders with respect to the consummation of the transactions contemplated hereunder. All such actions shall be deemed to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations facts ascertainable outside of or incurred by the Securityholders’ Representative in connection with this Agreement or and shall be binding on the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing mattersSeller Securityholders as a matter of contract Law. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have the has full power and authority to authority, on behalf of each Seller Securityholder and his, her or its successors and assigns, to:
(i) interpret all the terms and provisions of this Agreement and the Escrow Agreement documents to be executed and delivered by the Seller Securityholders in connection herewith;
(ii) execute and deliver and receive deliveries of all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to be given to or by Seller Securityholders in connection with the Contemplated Transactions;
(iii) receive any amounts due or to be paid to the Seller Securityholders hereunder;
(iv) allocate among the Seller Securityholders and distribute and pay to the Seller Securityholders any amount to be paid to the Seller Securityholders or to be paid to Securityholders’ Representative on behalf of the Seller Securityholders hereunder and delivery of wire instructions to Buyer in connection with the foregoing;
(v) act on behalf of the Seller Securityholders in all matters relating to Section 4.9 and ARTICLE V of this Agreement, including agreeing to, negotiating, entering into settlements and compromises of, and assuming the defense of, indemnification claims and initiating claims and complying with orders with respect to such indemnification claims, and to consent to any amendment hereof take all actions necessary or thereof appropriate in his or her capacity as Securityholders’ Representative; provided, however, the judgment of the Securityholders’ Representative for the accomplishment of the foregoing;
(vi) take any and all actions that may not consent to any be necessary or desirable, as determined by the Securityholders’ Representative in its sole discretion, in connection with the amendment of this Agreement in accordance with Section 7.5;
(vii) give and receive notices and communications;
(viii) receive service of process in connection with any indemnification claims under this Agreement; and
(ix) take any and all other actions and do any and all other things necessary or appropriate in the Escrow Agreement that would increase judgment of the liability Securityholders’ Representative on behalf of a Securityholder without any or all of the prior written consent of such SecurityholderSeller Securityholders in connection with this Agreement, the Ancillary Documents, and the Contemplated Transactions.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes Buyer shall be entitled to deal exclusively with the Securityholders’ Representative to:
(i) Receive on behalf of any Seller Securityholder with respect to all notices matters relating to this Agreement and the Ancillary Documents and the Contemplated Transactions. Buyer, and any other Person, may conclusively and absolutely rely, without inquiry and without further evidence of any kind whatsoever, upon any consent, approval or documents given or to be given to action of Securityholders’ Representative pursuant hereto as the consent, approval or action, as the case may be, of each Seller Securityholder individually and all Seller Securityholders as a group in all matters referred to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counselherein, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the each Seller Securityholder confirms all that Securityholders’ Representative may in his shall do or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties cause to be done by virtue of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity its appointment as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) Each Seller Securityholder hereby consents and agrees to all actions or inactions taken or omitted to be taken by the Securityholders’ Representative under this Agreement and hereby agrees to indemnify and hold harmless the Securityholders’ Representative from and against all damages, Losses, Liabilities, charges, penalties, costs and expenses (including court costs and legal fees and expenses) incurred in any proceeding between any such Person or Persons and the Seller Securityholders (or any of them) or between any such Person or Persons and any third party or otherwise incurred or suffered as a result of or arising out of such actions or inactions of the Securityholders’ Representative (except for actions or inactions resulting from the willful malfeasance or gross negligence of the Securityholders’ Representative). The Securityholders’ Representative shall have no duties the right to the Indemnifying Securityholders or liability retain legal counsel and other advisors and to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by incur such fees as the Securityholders’ Representative deems reasonable and necessary in connection the exercise of its responsibilities hereunder and to seek payment or reimbursement from the Seller Securityholders for such fees and expenses, including solely with respect to the Escrow Agreement or internal relationship among the Securityholders’ Representative and the Seller Securityholders setting off such fees and expenses against amounts otherwise payable to the Seller Securityholders under this Agreement.
(d) Securityholders’ Representative may resign upon 90 days prior written notice thereof (the “Resignation Notice”) to Buyer and each Seller; provided that a successor Securityholders’ Representative shall have been duly appointed pursuant to this Section 7.17(d) prior to the retiring Securityholders’ Representative’s resignation. Upon receipt of the Resignation Notice, a majority of Sellers (based on their respective Pro Rata Shares) shall appoint a successor Securityholders’ Representative. If no successor Securityholders’ Representative shall have been appointed by the Seller Securityholders, and shall have accepted such appointment, within 60 days after delivery of the Resignation Notice, then the Securityholders’ Representative wishing to resign shall, on behalf of the Seller Securityholders, appoint a successor Securityholders’ Representative, which shall be any Seller Securityholder. Upon the acceptance of its appointment as Securityholders’ Representative hereunder by a successor Securityholders’ Representative, such successor Securityholders’ Representative shall succeed to and become vested, effective no earlier than 90 days after delivery of the Resignation Notice, with all the rights and duties of the retiring Securityholders’ Representative, and the retiring Securityholders’ Representative shall be discharged from its duties and obligations hereunder. After the retiring Securityholders’ Representative’s resignation hereunder as Securityholders’ Representative, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Securityholders’ Representative. For the avoidance of doubt, other than to the extent specified in this Agreement, the rights and powers of the Securityholders’ Representative hereunder shall only become effective upon the completion of the Dissolution.
Appears in 1 contract
Securityholders’ Representative. (a) Approval of the Merger by the stockholders of the Company entitled to vote thereon and execution of each of the Investment Agreement or Stockholder Release and the Optionee Release Agreement by the Stockholders and Option Holders, respectively, shall also constitute the appointment of E▇▇▇▇▇ ▇▇▇▇▇▇ to act as representative of the Securityholders and to act as each of the Securityholders’ attorney-in-fact and representative (the “Securityholders’ Representative”), to do any and all things, and to execute any and all documents, required or permitted under this Section 10.1 and Article 9 of this Agreement, to receive any notice required hereunder or to authorize, without further action on the part of the Securityholders, any distributions from the Escrow Fund to or for the benefit of the Indemnitees hereunder and to negotiate and enter into binding agreements with respect thereto and to all other matters related to the indemnification provided hereby. Gene Logic, Merger Sub and the Surviving Corporation shall be entitled to rely, as being binding upon such Securityholders, upon any document or other paper believed by Gene Logic, the Merger Sub or the Surviving Corporation to be genuine and correct and to have been signed by the Securityholders’ Representative, and Gene Logic, the Merger Sub and the Surviving Corporation shall not be liable to any Securityholder for any action taken or omitted to be taken by Gene Logic, the Merger Sub or the Surviving Corporation in such reliance. The Securityholders’ Representative shall have full power the sole and authority exclusive right on behalf of any Securityholder to take all actions under any action or provide any waiver, or receive any notice with respect to any claims for indemnification relating to Gene Logic Losses or Stockholder Losses pursuant to this Agreement and to settle any claim or controversy arising with respect thereto.
(b) On the Escrow Agreement that are Closing Date, Gene Logic shall wire the Indemnification Expense Cash to be taken by the Securityholders’ RepresentativeEscrow Account. The Securityholders’ Representative Indemnification Expense Cash shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred held by the Securityholders’ Representative in connection with this Agreement or escrow in the Securityholders’ Escrow AgreementAccount as a source of funds for the payment of expenses, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”)including legal expenses, defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives incurred in connection with the foregoing mattersprosecution, defense, settlement or negotiation of any claim for indemnification hereunder, or any disputes relating thereto, brought by or against the Securityholders’ Representative. Without limiting In no event shall the generality Indemnification Expense Cash be used to pay indemnification claims brought against the Securityholders’ Representative. In the event any funds remain in the Securityholders’ Escrow Account at the end of the foregoingperiod ending on the 18 month anniversary of the Closing Date, the Securityholders’ Representative shall have disburse such amounts from escrow to the full power and authority Securityholders in accordance with their respective portions of the Indemnification Expense Cash (based on the portion of the Indemnification Expense Cash attributed to interpret all each Securityholder pursuant to the terms and provisions of Distribution Instructions provided to Gene Logic by the Company pursuant to this Agreement and Agreement), unless there are unresolved claims for indemnification outstanding on such date, in which case, to the Escrow Agreement and to consent to extent any amendment hereof or thereof funds remain in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent Account upon resolution of such Securityholder.
(b) The Companyoutstanding claims, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or to such funds shall be given to Securityholders’ Representative pursuant hereto or disbursed to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby Securityholders as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained previously provided in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Companysentence.
(c) The Securityholders’ Representative shall have no duties may resign at any time by giving written notice of resignation, at least 60 days prior to the Indemnifying Securityholders or liability effectiveness of such resignation, to Gene Logic, the Indemnifying Securityholders with respect to any action takenSurviving Corporation and the Securityholders, decision made or instruction given by and the Securityholders’ Representative may be removed at any time with or without cause by the approval of two-thirds in connection interest (based on the aggregate number of shares of Company Common Stock held by the Stockholders on the Closing Date and underlying Company Stock Options held by Option Holders on the Closing Date) of the Securityholders (collectively, the “Approving Holders”). Upon any such resignation or removal, such Approving Holders shall select a successor Securityholders’ Representative, which successor shall be approved by the Approving Holders. In the case of a resigning Securityholders’ Representative, if no successor Securityholders’ Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the date of resignation of the resigning Securityholders’ Representative), within 45 days after the resigning Securityholders’ Representative’s giving of notice of resignation, the resigning Securityholders’ Representative (or Gene Logic if the resigning Securityholders’ Representative does not act) may, on behalf of the Approving Holders, appoint a successor Securityholders’ Representative. Upon the acceptance of any appointment as Securityholders’ Representative thereunder by a successor Securityholders’ Representative, such successor Securityholders’ Representative shall thereupon succeed to and become vested with all the Escrow rights, powers, privileges and duties of the resigning Securityholders’ Representative, and the resigning Securityholders’ Representative shall be discharged from its duties and obligations as Securityholders’ Representative under this Agreement and under the Investment Agreement, the Stockholder Release and the Optionee Release Agreement. After any resigning Securityholders’ Representative’s resignation or removal hereunder as Securityholders’ Representative, the provisions of this AgreementSection 10.1 shall inure to his benefit as to any actions taken or omitted to be taken by it while it was Securityholders’ Representative. Any successor Securityholders’ Representative shall by means of execution of a counterpart hereof be bound by the terms of this Agreement applicable to the Securityholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Gene Logic Inc)
Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in this Agreement, the Sellers hereby designate the Securityholders’ Representative as the representative of the Sellers.
(b) In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Sellers who held at least a majority of the Shares immediately prior to the Closing shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) In addition to the foregoing, the Sellers agree that:
(i) the Securityholders’ Representative shall be appointed and constituted the true and lawful attorney-in-fact of each Seller, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including, without limitation, executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. The Securityholders’ Representative ▇▇▇▇▇▇ accepts such appointment;
(ii) the Securityholders’ Representative shall have full power authority to, after the Closing (A) execute, deliver, acknowledge, certify and authority to take file on behalf of the Sellers (in the name of any or all actions under this Agreement and of the Escrow Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take Sellers or otherwise) any and all actions which he or she believes are necessary or appropriate under this Agreement and the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by documents that the Securityholders’ Representative may, in connection with this Agreement its sole discretion, determine to be necessary, desirable or the Escrow Agreementappropriate, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent in such forms and its agents regarding containing such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, provisions as the Securityholders’ Representative shall have the full power and authority may, in its sole discretion, determine to interpret be appropriate, (B) do all the terms and provisions of this Agreement and the Escrow Agreement things and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; providedperform all acts, howeverincluding amending the Transaction Documents, the Securityholders’ Representative may not consent to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Companywaiving rights, the Indemnifying Securityholdersdischarging liabilities and obligations, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive making all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or decisions relating to the Escrow Agreement determination of the Contingent Payments (or any Permitted Offsets reflected in connection herewith or therewith and to receive and accept services of legal process such Contingent Payments) in connection accordance with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants resolve disputes, including with respect to the Contingent Payments (including Permitted Offsets) and indemnification claims hereunder, (C) give and receive notices and other advisors and incur such other expenses in connection with communications relating to this Agreement or the Escrow Agreement and the transactions contemplated hereby (except to the extent that this Agreement contemplates that such notice or thereby as communication shall be given or received by the Sellers individually), (D) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby, (E) prepare and deliver to Buyer one or more updated Payment Schedules to reflect any changes in the payment amounts owed to the Sellers and holders of Vested Options in accordance with the terms of this Agreement, and (F) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative may in his or her sole discretion deem appropriatefor the accomplishment of the foregoing;
(iii) After Buyer and the Effective Time, take such action as Company shall be entitled to rely conclusively on the instructions and decisions given or made by the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving as to any inaccuracies in of the representations or warranties of Parent or MergerCo contained matters described in this Agreement Section 1.7, and no party shall have any cause of action against Buyer, the Company or their respective Affiliates for any action taken by Buyer, the Company or their respective Affiliates in reliance upon any document delivered by Parent such instructions or MergerCo pursuant hereto; decisions;
(Biv) taking such other action as all actions, decisions and instructions of the Securityholders’ Representative, including any agreement between the Securityholders’ Representative is authorized and Buyer relating to take under this Agreement the determination or dispute of any Contingent Payment, or the Escrow Agreement; (C) receiving all documents defense or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought the Sellers may be required to indemnify the Buyer Indemnified Parties pursuant to this Article X Section 6.1 hereof, shall be conclusive and binding upon each of the Sellers, and no Seller shall have any waiver cause of any obligation of Parent or action against the Surviving Company.
(c) The Securityholders’ Representative and the Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to not be liable for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement on the part of the Securityholders’ Representative;
(v) the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the Escrow transactions contemplated by this Agreement; and
(vi) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Sellers’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) As between the Sellers and the Securityholders’ Representative, the Securityholders’ Representative shall not be liable for any act done or omitted hereunder as Securityholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Securityholders’ Representative shall be indemnified, defended and held harmless and reimbursed by the Sellers from and against any Securityholders’ Representative Expenses arising out of or in connection with the 5. Securityholders’ Representative’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Securityholders’ Representative Expense is suffered or incurred; provided, that in the event that any such Securityholders’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Sellers the amount of such indemnified Securityholders’ Representative Expenses to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Sellers, any such Securityholders’ Representative Expense may be recovered by the Securityholders’ Representative, at any time (i) from any Contingent Payment, to the extent actually paid; or (ii) from the Sellers according to each Seller’s Ownership Percentage with respect to the first Milestone Payment; provided, however, that while this Section 1.7 allows the Securityholders’ Representative to be paid from any Contingent Payment, this does not relieve any Seller from its obligation to pay its Ownership Percentage of any such Securityholders’ Representative Expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at Law or otherwise, and provided further that no Seller shall be liable to the Securityholders’ Representative for any amount in excess of the portion of the Purchase Price (to the extent actually paid) to which such Seller is entitled. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Sellers or otherwise. The Sellers acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Securityholders’ Representative. (a) The Securityholders’ Representative shall have is hereby constituted and appointed as the representative, agent and attorney-in-fact for the Securityholders, with full power and authority in the name of and for and on behalf of each Securityholder, to take all actions serve as the Securityholders’ Representative under this Agreement and the Escrow other agreements contemplated hereby and to exercise the power and authority to act on behalf of, and in the name of, each Securityholder with respect to all matters relating to this Agreement that are or such other agreements, and the transactions contemplated hereunder or thereunder; provided that, with respect to be taken by the Securityholders’ Representative. The matters set forth in Section 2.08 (and any matters directly related thereto) the Securityholders’ Representative shall take any and all actions which he or she believes are necessary or appropriate under this Agreement and act in accordance the Escrow Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Securityholders’ Representative, interpreting all vote of the terms and provisions holders of this Agreement and the Escrow Agreement, authorizing payments majority of shares of Company Capital Stock as of immediately prior to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing mattersEffective Time. Without limiting the generality of the foregoing, the Securityholders’ Representative shall have is hereby granted the full power and authority by each Securityholder to interpret all the terms negotiate and provisions of enter into amendments to this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, other agreements contemplated hereby for the Securityholders’ Representative may not consent and on behalf of each such Securityholder, to act on each Securityholder’s behalf in any amendment of dispute, litigation or arbitration involving this Agreement or such other agreements or any document delivered to the Escrow Agreement that would increase Securityholders’ Representative in such capacity pursuant hereto or thereto, and to do or refrain from doing all such further acts and things, and execute all such documents, as the liability of a Securityholder without Securityholders’ Representative shall deem necessary or appropriate in connection with the prior written consent of such Securityholdertransactions contemplated hereby.
(b) The CompanySecurityholders’ Representative shall not be liable for any act done or omitted hereunder in connection with the acceptance, performance, or administration of the Indemnifying Securityholders’ Representative’s duties hereunder, Parent except with respect to the Securityholders’ Representative’s actual fraud or bad faith, and MergerCo each hereby authorizes for this purpose any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of the absence of fraud and bad faith. The Securityholders will jointly and severally indemnify the Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as hold the Securityholders’ Representative may in his harmless against any loss, liability, or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given expense incurred by the Securityholders’ Representative (other than as a direct result of the Securityholders’ Representative’s own actual fraud or bad faith) on the Securityholders’ Representative’s part arising out of or in connection with the Escrow Agreement acceptance, performance, or this Agreementadministration of the Securityholders’ Representative’s duties hereunder. None of Parent, Merger Sub, Second Merger Sub or the Company will have any Liability to any Securityholder for any action taken by Parent, Merger Sub, Second Merger Sub or the Company in accordance with the instructions of the Securityholders’ Representative.
Appears in 1 contract
Securityholders’ Representative. (a) The Each Company Securityholder hereby irrevocably constitutes and appoints Fortis Advisors LLC as his, her or its sole, exclusive, true and lawful agent and attorney-in-fact (the “Securityholders’ Representative”), with full power of substitution to act in such Company Securityholder’s name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement or the Escrow Agreement, and to act on such Company Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents, on such Company Securityholder’s behalf, as the Securityholders’ Representative deems necessary or appropriate in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the power: (i) to execute and deliver this Agreement and any and all amendments, waivers or modifications hereof; (ii) to waive any condition to the obligations of such Company Securityholder to consummate the transactions contemplated by this Agreement; (iii) to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of such Company Securityholder that the Securityholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Escrow Agreement; and (iv) to do or refrain from doing any further act or deed on behalf of such Company Securityholder as is assigned, delegated or charged to the Securityholders’ Representative or that the Securityholders’ Representative otherwise deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement, as fully and completely as such Company Securityholder could do if personally present. Notwithstanding the foregoing, the Securityholders’ Representative shall have full power no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and authority in the Paying Agent Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. All such actions set forth or described in this Section 1.14(a) will be deemed to take all actions under be facts ascertainable outside this Agreement and will be binding on the Company Securityholders.
(b) The appointment of the Securityholders’ Representative and the powers, immunities and rights to indemnification granted to the Securityholders’ Representative and the Advisory Group (as defined below) hereunder are: (i) deemed coupled with an interest and will be irrevocable, and survive the death, incompetence, bankruptcy or liquidation of the respective 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 Amount. Parent, its Affiliates and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholders’ Representative on behalf of the Company Securityholders in all matters referred to herein. All notices delivered by Parent or the Company (following the Closing) to the Securityholders’ Representative (whether pursuant hereto or otherwise) for the benefit of the Company Securityholders will constitute notice to the Company Securityholders. The Securityholders’ Representative will act for the Company Securityholders on all of the matters set forth in this Agreement that are in the manner the Securityholders’ Representative believes to be taken in the best interest of the Company Securityholders as a whole and consistent with its obligations under this Agreement, but the Securityholders’ Representative will not be responsible to the Company Securityholders for any loss or damages it or they may suffer by reason of the performance by the Securityholders’ Representative of its duties under this Agreement, other than loss or damage arising from fraud by the Securityholders’ Representative. The Securityholders’ Representative shall take be entitled to: (i) rely upon the Consideration Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and all actions which he (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or she believes are necessary other party.
(c) If the Securityholders’ Representative resigns or appropriate under this Agreement and is otherwise similarly unable to carry out its duties hereunder, then the Escrow Agreementrepresentatives of the Advisory Group (as defined below) will, includingwithin five Business Days, without limitation, executing the Escrow Agreement as appoint a new Securityholders’ Representative. The representatives of the Advisory Group may at any time, giving and receiving for any notice reason or instruction permitted or required under this Agreement or the Escrow Agreement by no reason, remove the Securityholders’ Representative, interpreting all . If at any time there is not a Securityholders’ Representative and the Company Securityholders fail to designate in writing a successor Securityholders’ Representative within five Business Days after receipt of a written request delivered by Parent to the representatives of the terms Advisory Group requesting that a successor Securityholders’ Representative be designated in writing, then Parent may petition a court of competent jurisdiction to appoint a new Securityholders’ Representative hereunder.
(d) All actions, decisions and provisions instructions of the Securityholders’ Representative taken, made or given pursuant to the authority granted to the Securityholders’ Representative pursuant to this Agreement Section 1.14 will be conclusive and binding upon each Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and no Company Securityholder will have the Escrow right to object, dissent, protest or otherwise contest the same. Each Company Stockholder and each Company Warrantholder, by the execution and delivery of any Letter of Transmittal, each Company Optionholder, by the execution and delivery of any Option Termination Agreement, authorizing payments will be deemed to be made with respect hereto or theretohave approved, obtaining reimbursement as provided for herein for all out-of-pocket fees confirmed and expenses and other obligations of or incurred ratified any action taken by the Securityholders’ Representative in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality exercise of the foregoing, power-of-attorney granted to the Securityholders’ Representative shall pursuant to this Section 1.14, which power-of-attorney, being coupled with an interest, is irrevocable and will survive the death, incapacity or incompetence of each such Company Securityholder.
(e) Certain Company Securityholders have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, entered into a letter agreement with the Securityholders’ Representative may not consent (the “Securityholders Representative Agreement”) to any amendment of this Agreement or the Escrow Agreement that would increase the liability of a Securityholder without the prior written consent of such Securityholder.
(b) The Company, the Indemnifying Securityholders, Parent and MergerCo each hereby authorizes the Securityholders’ Representative to:
(i) Receive all notices or documents given or provide direction to be given to Securityholders’ Representative pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving Company.
(c) The Securityholders’ Representative shall have no duties to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action taken, decision made or instruction given by the Securityholders’ Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”) will be liable to the Company Securityholders for any act done or omitted hereunder in its capacity as the Securityholders’ Representative unless caused by fraud by the Securityholders’ Representative. The Securityholders’ Representative will not have any fiduciary, agency or other duties to the Company Securityholders and its only obligations will be as expressly set forth in this Agreement. The Securityholders’ Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company Securityholders hereunder, and Parent and the Company agree that they will not look to the underlying assets of the Securityholders’ Representative for the satisfaction of any obligations of the Company Securityholders (or any of them). The Company Securityholders acknowledge that the Securityholders’ Representative 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 administration of its duties. The Company Securityholders will severally and not jointly, in accordance with their respective Pro Rata Portions (and not jointly), indemnify and defend the Securityholders’ Representative Group and hold the Securityholders’ Representative Group on demand harmless against any damages, losses, claims, liabilities, fees, costs, judgments, fines, amounts paid in settlement, or expenses incurred by the Securityholders’ Representative Group and arising out of or in connection with the acceptance, performance or administration of the Securityholders’ Representative Group’s duties hereunder or under the Escrow Agreement, including the reasonable fees and expenses of any legal counsel, accountants, auditors and other advisors or skilled professionals retained by the Securityholders’ Representative or in connection with seeking recovery from insurers, which rights will survive the resignation or removal of the Securityholders’ Representative. Such Securityholders’ Representative expenses may be recovered first, from the Contingency Amount, second, from any distribution of the Escrow Amount otherwise distributable to the Company Securityholders at the time of distribution, and third, directly from the Company Securityholders based on their respective Pro Rata Portion (severally and not jointly). The Securityholders’ Representative will be entitled to retain its own counsel and other professional advisers in connection with the acceptance, performance or administration of the Securityholders’ Representative’s duties hereunder or under the Escrow Agreement or the exercise of any of the Securityholders’ Representative’s rights hereunder, and will further be entitled to withdraw from the Contingency Amount the amount of any fees and expenses of such counsel and professionals. In the event of any ambiguity or uncertainty hereunder, the Securityholders’ Representative may, in its sole and reasonable discretion, refrain from taking any action, unless the Securityholders’ Representative receives written instructions, signed by the representatives of the Advisory Group, that eliminate such ambiguity or uncertainty. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative or any member of the representatives of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) If (i) the Securityholders’ Representative elects (1) to assume and control the defense and/or management of any Third Party Claim at the expense of Company Securityholders in accordance with Section 8.1(f) hereof or (2) to take any other action under this Agreement or the Escrow Agreement that may require the payment of amounts out of the Contingency Amount, including for any attorneys, accountants, auditors or other advisors, and (ii) the Securityholders’ Representative’s good faith estimate of the reasonable expenses to be incurred by of the Securityholders’ Representative in connection with any such action exceeds the balance of the Contingency Amount, the Securityholders’ Representative may refrain from taking any such action until such time as the Securityholders’ Representative, upon seven days’ notice to the Company Securityholders, receives written commitments signed by the representatives of the Advisory Group for payment of such expenses, in which case all Company Securityholders will pay their Pro Rata Portion of such estimated expenses. Any such initial notice by the Securityholders’ Representative to the Company Securityholders will include a statement of the balance of the Contingency Amount, the good faith estimate of the reasonable expenses to be incurred by the Securityholders’ Representative, the amount by which the estimated expenses to be incurred exceed the balance of the Contingency Amount, and each Company Securityholder’s Pro Rata Portion of such excess expense amount. Each Company Securityholder will deliver its Pro Rata Portion of any excess expense amount by wire transfer of immediately available funds, using the wire instructions identified in any such initial notice, no later than ten days following the date on which the Securityholders’ Representative gives such Company Securityholder notice of the receipt of commitments signed by the representatives of the Advisory Group for payment of such excess expenses; provided, however, that no Company Securityholder will be required to make any payments, individually or in the aggregate, pursuant to this Section 1.14(f) in excess of the Aggregate Merger Consideration previously received by such Company Securityholder. Any amounts thus paid will increase the balance of the Contingency Amount.
Appears in 1 contract
Sources: Merger Agreement (Techne Corp /Mn/)
Securityholders’ Representative. (a) The Securityholders’ Representative shall have full power Each Company Securityholder, by virtue of the approval and authority to take all actions under adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under the Delaware Code) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇▇▇▇▇▇ as its agent and attorney-in-fact (the Escrow Agreement that are to be taken by the “Securityholders’ Representative. The Securityholders’ Representative shall take any ”) for and all actions which he or she believes are necessary or appropriate under this Agreement and on behalf of the Escrow AgreementCompany Securityholders to act for the Company Securityholders as set forth herein, including, without limitation, executing the Escrow Agreement as Securityholders’ Representativewith regard to matters pertaining to Sections 1.4, giving 2.3, 2.4, 2.5, 6.4, 6.6, 7.3, Article 9 and receiving any notice or instruction permitted or required under Article 10, give and receive notices and communications relating to this Agreement or the Escrow Agreement by transactions contemplated hereby and to take all other actions that are either (i) necessary or appropriate in the Securityholders’ Representative, interpreting all judgment of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Securityholders’ Representative in connection with for the performance of the obligations of each Company Securityholder required by it pursuant to this Agreement or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Each Company Securityholder agrees to receive correspondence from the Securityholders’ Representative, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified including in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matterselectronic form. Without limiting the generality of Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall have be effective upon the full power and authority to interpret all earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the terms and provisions appointment of this Agreement and a successor by the Escrow Agreement and to consent to any amendment hereof or thereof holders of a majority in his or her capacity as Securityholders’ Representative; provided, however, interest of the Clawback Shares. If the Securityholders’ Representative may not shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If, for any reason, there is no Securityholders’ Representative at any time, all references in this Agreement to the Securityholders’ Representative shall be deemed to refer to the Escrow Participants. No bond shall be required of the Securityholders’ Representative. A decision, act, consent to any amendment or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement or pursuant to its authority hereunder, shall constitute a decision of the Escrow Agreement that would increase Company Securityholders and shall be final, binding and conclusive upon the liability of a Securityholder without the prior written consent of such SecurityholderCompany Securityholders.
(b) The Company, By executing this Agreement under the Indemnifying heading “Securityholders, Parent ’ Representative,” ▇▇▇▇▇ ▇▇▇▇▇▇ hereby (i) accepts his appointment and MergerCo each hereby authorizes the authorization to act as Securityholders’ Representative to:
(i) Receive all notices or documents given or to be given to Securityholders’ Representative pursuant hereto or to as attorney-in-fact and agent on behalf of the Escrow Agreement or Company Securityholders in connection herewith or therewith accordance with the terms of this Agreement, and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Escrow Agreement;
(ii) Engage counselagrees to perform his obligations under, and such accountants and other advisors and incur such other expenses in connection with otherwise comply with, this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby as the Securityholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Effective Time, take such action as the Securityholders’ Representative may in his or her sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or MergerCo contained in this Agreement or in any document delivered by Parent or MergerCo pursuant hereto; (B) taking such other action as the Securityholders’ Representative is authorized to take under this Agreement or the Escrow Agreement; (C) receiving all documents or certificates and making all determinations, in their capacity as Securityholders’ Representative, required under this Agreement or the Escrow Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article X and any waiver of any obligation of Parent or the Surviving CompanySection 10.10.
(c) The Securityholders’ Representative shall have no duties not be liable to any Company Securityholder for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the Indemnifying Securityholders or liability to the Indemnifying Securityholders with respect to any action takenbona fide good faith advice of counsel, decision made or instruction given accountants and other professionals and experts retained by the Securityholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Legal Requirements, the Company Securityholders shall severally indemnify the Securityholders’ Representative and hold it harmless against any loss, Liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of- pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative. If not paid directly to the Securityholders’ Representative by the Company Securityholders, such losses, Liabilities or expenses may be recovered by the Securityholders’ Representative from the Clawback Shares otherwise distributable to the Escrow Participants (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the General Indemnity Termination Date, pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Escrow Participants according to their respective Pro Rata Portion. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative to expend or risk its own funds or otherwise incur any financial Liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement.
(d) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 10.10: (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Company Securityholders and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Escrow Participant of the whole or any fraction of his, her or its interest in the Clawback Shares.
(e) The Company shall deliver to the Securityholders’ Representative a copy of the following documents: (i) the Spreadsheet, (ii) the Closing Expenses Certificate, and (iii) the Company Indebtedness Certificate.
Appears in 1 contract
Sources: Merger Agreement (Cure Pharmaceutical Holding Corp.)