Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx accepts such appointment. (b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: (i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate; (ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; (iv) to receive funds, make payments of funds, and give receipts for funds; (v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses; (vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and (vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder. (c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder. (d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems. (e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement. (f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative. (g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative. (h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement. (i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. (j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount. (k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, The undersigned hereby irrevocably appoints the Representative as histhe undersigned’s representative, her or its attorney-in-fact and agent, attorney in fact, proxy and representative (with full power of substitution to act in the premises)name, andplace and stead of the undersigned in accordance with the terms of the Merger Agreement and to act on behalf of the undersigned in any amendment of or action involving the Merger Agreement, by its execution hereofincluding initiating, prosecuting, defending, negotiating, settling or otherwise dealing with claims on behalf of or against the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary undersigned arising under or in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Paying Agent Agreement and Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subjector any transactions or matters related thereto, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Representative shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreementhereby, including, without limitation, including the power:
(ia) to execute and deliver deliver, and administer all matters pertaining to performance under, the Paying Agent Agreement and the Escrow Agreement and Agreement; and
(b) to take all action necessary or desirable in connection with the waiver of any amendments thereto as condition to the representative obligations of the Company Stockholders; to execute any instructions or directions to consummate the transactions contemplated by the Merger Agreement, the Paying Agent Agreement and the Escrow Agent with respect to disbursements or other matters thereunderAgreement; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;and
(iic) to negotiate, execute and deliver all amendmentsancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, ancillary agreementsundertakings, stock powers, certificates amendments and other documents that the Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this the Merger Agreement;, the Paying Agent Agreement and the Escrow Agreement; and
(iiid) to execute give and deliver receive all amendments notices and waivers communications to this be given or received under the Merger Agreement, the Paying Agent Agreement that and the Representative deems necessary or appropriate, whether prior to, at or after Escrow Agreement and to receive service of process in connection with any claims under the Closing;Merger Agreement and the transactions contemplated thereby; and
(ive) to receive fundstake all actions that, make payments of funds, and give receipts for funds;
(v) to receive funds for under the payment of expenses of the Company Stockholders (including, without limitationMerger Agreement, the Representative Holdback Amount)Paying Agent Agreement and the Escrow Agreement and pursuant to the transactions contemplated thereby, to deposit such funds in such accounts as may be taken by the Representative deems appropriate undersigned (or the Representative) and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders undersigned that the Representative deems necessary or appropriate in its the Representative’s sole discretion relating to the subject matter of this the Merger Agreement and the transactions contemplated hereby as fully and completely as the Company Stockholders undersigned could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Merger Agreement (Health Insurance Innovations, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and of, amongst other items, the defense and/or settlement of any claims claim or Actions related to liability in connection with this Agreement or the transactions contemplated hereby, the Stockholders and Optionholders, by their adoption and approval of this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instrumentsinstruments (including the Letters of Transmittal, Option Cancellation Agreements, Stockholder Consent and Support Agreement), irrevocably appoints appoint the Representative as his, her or its their agent, attorney in fact, proxy fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx hereby accepts such appointment.
(b) The Representative is hereby authorized (ix) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims claim or Actions related to liability in connection with this AgreementAgreement or the transactions contemplated hereby, (iiy) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders and the Optionholders are subject, and (iiiz) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendmentsconsents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iiiii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iviii) to receive funds, make payments of fundsfunds (including from the Representative Reserve Fund), and give receipts for funds;
(viv) to receive funds for the payment of expenses of the Company Stockholders and the Optionholders (including, without limitation, including the Representative Holdback AmountReserve Fund), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(viv) to do or refrain from doing any further act or deed on behalf of the Company Stockholders and the Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders and the Optionholders could do if personally present; and
(viivi) to receive service of process in connection with, and to defend and/or settle, with any claims or Actions under this Agreement on behalf of such Company StockholderAgreement.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders and the Optionholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock Shares issued and outstanding immediately prior to the Effective Time shall Time, will select another representative to fill such vacancy, vacancy and such substituted representative shall will be deemed to be the Representative for all purposes of this Agreement.
(fd) All decisions, decisions and actions and instructions by the Representative shall Representative, including the defense or settlement of any claim or liability in connection with this Agreement or the transactions contemplated hereby, will be conclusive and binding upon all of the Company StockholdersStockholders and Optionholders, and no Company Stockholder shall or Optionholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent, the Paying Agent, the Escrow Agent and the other Parent Indemnified Parties will be able to rely conclusively on the instructions and decisions of the Representative and treat the Representative as the duty appointed representative of the Stockholders and Optionholders and any decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Stockholder or Optionholder, as applicable. No Party Parent, the Company and the other Parent Indemnified Parties may, and the Escrow Agent and the Paying Agent shall, disregard any notice or Company instruction received directly from any Stockholder or Optionholder, other than the Representative. Parent and the other Parent Indemnified Parties are hereby relieved from any liability to any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Representative. Each Stockholder and Optionholder hereby agrees that for any Legal Proceeding arising under this Agreement or any other agreements ancillary hereto, such Stockholder or Optionholder, as applicable, may be served legal process by registered mail to the address set forth in Section 12.04 for the Representative (or any alternative address designated to the parties in writing by the Representative), and that service in such manner shall be adequate and such Stockholder or Optionholder shall not assert any defense of claim that service in such manner was not adequate or sufficient in any court in any jurisdiction.
(f) All actions, decisions and instructions of the Representative will be conclusive and binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder will have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud fraud or willful misconduct by the Representative.;
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 12.19 are independent and severable, are irrevocable and coupled with an interest and shall will be enforceable notwithstanding any rights or remedies that any Company Stockholder or Optionholder may have in connection with the transactions contemplated by this Agreement.; and
(ih) The provisions of this Section 9.17 shall 12.19 will be binding upon the heirs, legal representatives, successors and permitted assigns of each Company StockholderStockholder and Optionholder, and any references in this Agreement to a Company Stockholder shall or an Optionholder or the Stockholders or Optionholders will mean and include the successors to the rights of the Company Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of of, amongst other items, the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) the Final Adjustment Amount and the defense and/or settlement of any claims or Actions related for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instrumentsinstruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoints appoint the Representative as his, her or its their exclusive agent, attorney in fact, proxy fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, rejection and determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) the Final Adjustment Amount and the defense and/or settlement of any claims or Actions related for Losses (including the power to this Agreementcompromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, including the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders Securityholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriateExpense Account;
(ii) to execute and deliver all amendmentsconsents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or appropriate after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders Securityholders could do if personally present; and
(viiv) to receive service of process in connection with, and to defend and/or settle, with any claims or Actions under this Agreement Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of such Company Stockholderthe Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders Shareholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock Company Shares issued and outstanding immediately prior to the Effective Time shall Time, will select another representative to fill such vacancy, vacancy and such substituted representative shall will be deemed to be the Representative for all purposes of this Agreement.
(fd) All decisions, actions and instructions by the The Representative shall be conclusive entitled to: (i) rely upon the Percentage Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Company StockholdersSecurityholders, and no Company Stockholder shall Securityholder will have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(ge) Xxxxxx and Xxxxxx Sub shall Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and the Final Adjustment Amount and the settlement or compromise of any adjustment thereto claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 2.05 hereof) 8.02 hereof and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(hf) The provisions of this Section 9.17 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Company Stockholder Shareholder may have in connection with the transactions contemplated by this AgreementAgreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(ig) The provisions of this Section 9.17 shall 12.20 will be binding upon the heirs, legal representatives, successors and permitted assigns of each Company StockholderSecurityholders, and any references in this Agreement to a Company Stockholder shall Securityholder or the Securityholders will mean and include the successors to the rights of the Company Stockholders Securityholders hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(jh) All reasonable fees and expenses incurred by Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be paid liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Company Stockholders on a pro rata basis based on Representative while acting in good faith and in the respective aggregate Per Share Portions represented by exercise of its good faith judgment and arising out of or in connection with the Company Stock and Options held by each such Company Stockholder; provided acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the Representative advice of counsel, public accountants or other independent experts experienced in the matter at issue shall first make payment be conclusive evidence of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall good faith). Each Securityholder shall, severally and not jointly (and in accordance with their Per Share Portions)proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against, compensate it for, reimburse it for and pay against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, claimscosts, actionsfees, damages judgments, amounts paid in settlement and expenses, expenses (including reasonable attorneys’ fees and disbursements, arising out of court and other skilled professionals’ costs and in connection with its activities as the Representative under this Agreementseeking recovery from insurers) (collectively, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”)) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is suffered incurred or incurred; provided, that in the event that it is finally adjudicated that a suffered. The Representative Loss was caused by Fraud shall be entitled to recover any Representative Losses reasonably incurred by the RepresentativeRepresentative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative shall reimburse not be required to expend or risk its own funds or otherwise incur any financial liability in the Company Stockholders the amount exercise or performance of such indemnified Representative Loss attributable to such Fraudany of its powers, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied first (i) from the Representative Holdback Amount and thenExpense Account, (ii) to the extent the amount of the Representative Losses exceeds amount amounts available to the Representative Holdback Amountunder (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from the Company Stockholderseach Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in accordance with the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their Per Share Portions)respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Samples: Merger Agreement (Datalink Corp)
Appointment of the Representative. (a) In order Representative hereby agrees to administer efficiently serve as the determination and payment representative of the Merger Consideration (and any adjustment thereto Equityholders pursuant to this Section 2.05 hereof) 8.8 and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims or Actions related for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this AgreementArticle VIII or Section 5.11, each Company Stockholder, by his, her or its acceptance of any portion all decisions and actions relating to the adjustment of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Total Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act on behalf of the defense and/or settlement of any claims or Actions related Equityholders in all respects with respect to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of Transaction Documents, including the Company Stockholders are subject, and (iii) to do amendment or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf termination of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (agreements. All decisions and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company StockholdersEquityholders, and no Company Stockholder Equityholder shall have the right to objectobject to, dissentdissent from, protest or otherwise contest the same. No Party In the event of the death, incapacity or Company Stockholder resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement.
(b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any cause of matter related to the procedures for action against being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith.
(c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder.
(d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance.
(e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions actions taken or decisions of not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Merger Agreement (Kenexa Corp)
Appointment of the Representative. (a) In order Each Stockholder hereby irrevocably appoints X.X. Xxxxxxx Equity Partners III, L.L.C. to administer efficiently the determination act as such Stockholder's agent, attorney-in-fact and payment of the Merger Consideration (representative to do any and all things and to execute any adjustment thereto pursuant to Section 2.05 hereof) and all documents in such Stockholder's name, place and stead, in any way which such Stockholder could do if personally present, in connection with this Agreement and the defense and/or settlement transactions contemplated hereby, including, without limitation, to amend, cancel or extend, or waive the terms of any claims or Actions related to this Agreement, to act on each Company such Stockholder, by his, her or its acceptance of 's behalf in any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to dispute involving this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, things and to execute all such documents as the Representative shall deem necessary or appropriate in connection with this Agreement and the transactions contemplated by this Agreementhereby, in all events in the Representative's sole and absolute discretion, including, without limitation, the power:
(i) to execute and deliver act for each such Stockholder with regard to all matters pertaining to the Escrow post-closing purchase price adjustment referred to in Section 3.3 of the Merger Agreement and any amendments thereto as the representative indemnification referred to in Article IX of the Company Stockholders; Merger Agreement, including the power to execute settle any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay claim on behalf of any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; Stockholder and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriatetransact matters of litigation and arbitration;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powerscertificates, certificates notices and documents that the Representative deems necessary or appropriate documents, and to make representations and warranties therein, on behalf of each such Stockholder in connection with this Agreement and the consummation of the transactions contemplated by this Agreementhereby;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion each such Stockholder relating to the subject matter of this Agreement as fully and completely as the Company Stockholders such Stockholder could do if personally present; and
(viiiv) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative all notices on behalf of each Company such Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. in connection with any claims or matters under this Agreement.
(b) The Representative Holdback Amount shall be retained by the Representative for such time as appointment of the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders be deemed coupled with an interest and shall be distributed to the Company Stockholders based irrevocable, surviving death or disability of any Stockholder, and shall be binding upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closingexecutors, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assignsassigns of each Stockholder. All notices delivered by Parent or Escrow Agent under this Agreement to the Representative (whether pursuant hereto or otherwise) who held a majority for the benefit of each Stockholder shall constitute notice to each of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancyStockholders, and such substituted representative shall be deemed to be the Representative for all purposes shall use its commercially reasonable best efforts to timely deliver to each Stockholder a copy of this Agreementeach such notice delivered by Parent or Escrow Agent, as the case may be, hereunder.
(fc) All decisionsThe actions, actions decisions and instructions by of the Representative taken, made or given pursuant to the authority granted to the Representative pursuant to this Section 3 shall be conclusive and binding upon all of the Company Stockholderseach Stockholder and each Stockholder's heirs, representatives, successors and assigns, as applicable, and no Company Stockholder such persons or entities shall not have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder .
(d) The Representative shall have be entitled to rely, and shall be fully protected in relying, upon any cause of action against statements furnished to the Representative for by any action taken Stockholder or not takenParent, decision made or instruction given any other evidence deemed by the Representative to be reliable. The Representative shall be fully justified in failing or refusing to take any action under this Agreement. The Representative shall be entitled to act on the advice of counsel selected by such Representative, and the Representative shall be fully protected in respect of any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel. The Representative shall be entitled to retain counsel and to incur such expenses as the Representative deems to be necessary or appropriate in connection with the performance of the Representative's obligations under this Agreement, except and all such fees and expenses (including reasonable attorneys fees and expenses) incurred by the Representative shall be borne by each of the Stockholders (pro rata based on each Stockholder's percentage ownership determined as provided in Section 8(e)).
(e) The Representative shall not be liable for Fraud any error of judgment, or for any act done or omitted by it, or for any mistake in fact or law, or for anything that it may do or refrain from doing in connection herewith; provided, however, that notwithstanding any other provision in this Agreement, the Representative shall be liable for its willful misconduct or gross negligence or breach of this Agreement.
(f) The Stockholders hereby agree to indemnify the Representative (in its capacity as such) ratably according to each Stockholder's percentage ownership (determined as provided in Section 8(e)) against, and to hold the Representative (in its capacity as such) harmless from, any and all Losses of whatever kind that may at any time be imposed upon, incurred by or asserted against the Representative in such capacity in any way relating to or arising out of the Representative's actions or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that no Stockholder shall be liable for the payment of any portion of such Losses resulting solely from the willful misconduct or gross negligence of the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of The Representative hereby accepts its appointment as the Representative as to and the determination and payment of the Merger Consideration (and authorizations set forth above. The Representative shall not have any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required duties or permitted to be taken by the Representative hereunderresponsibilities except those expressly set forth in this Agreement, and no Partyimplied covenants, Company Stockholder functions, responsibilities, duties, obligations or liabilities shall have any cause be read into this Agreement or shall otherwise exist with respect to the Representative. No provision of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon this Section 3 may be amended without the written instructions or decisions consent of the Representative. The agreements in this Section 3 shall survive the termination of this Agreement.
(h) The provisions of this Section 9.17 are independent Parent and severable, are irrevocable and coupled with an interest and Escrow Agent shall be enforceable notwithstanding entitled to rely, as being binding upon each of the Stockholders, upon any rights document or remedies that other paper believed by Parent or Escrow Agent to be genuine and correct and to have been signed by the Representative, and Parent and Escrow Agent shall not be liable to any Company Stockholder may for any action taken or omitted to be taken by Parent or Escrow Agent in such reliance. The Representative shall have in connection with the transactions contemplated by sole and exclusive right on behalf of the Stockholders to take any action or provide any waiver pursuant to this Agreement.
(i) The provisions of this Section 9.17 shall be binding Immediately upon the heirs, legal representatives, successors and permitted assigns payment by the Representative of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by (including reasonable attorneys fees and expenses) pursuant to the Representative in connection with this Agreement shall be paid by provisions of Section 3(d) hereof, the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment portion of such fees and expenses (the "Stockholder Fees") owing by each of the Stockholders (other than X.X. Xxxxxxx III, L.P., X.X. Xxxxxxx XX, L.P. and Whitney Strategic Partners III, L.P.) (the "Minority Stockholders") as calculated pursuant to Section 3(d) hereof will accrue interest from the date paid at the rate of 7% per annum up to and through the date on which the Representative Holdback Amount and the is reimbursed in full for such Stockholder Fees. The Representative shall be authorized entitled to withhold from any distribution be reimbursed for the Stockholder Fees from the Adjustment Escrow Account made Account. From time to time following payment by the Representative of any fees or expenses, the Representative may deliver to the Company Escrow Agent a certificate substantially in the form of Annex X attached hereto (the "Representative Fee Certificate") stating (i) the total amount of the Stockholder Fees as of such date, if any, (ii) the number of whole Escrow Shares (rounding to the nearest whole share) otherwise deliverable to the Minority Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess delivered, notwithstanding any other provision of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by to the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, as is equal to the extent quotient obtained by dividing (x) the amount of the Stockholder Fees as of such date by (y) the Parent Common Share Price and (iii) each Minority Stockholder's pro rata portion of such shares (determined as provided in Section 8(e) hereof) to be delivered pursuant to subsection (ii) immediately above. Notwithstanding anything to the contrary set forth herein, the Escrow Agent shall deliver the number of Escrow Shares determined pursuant to the immediately preceding sentence to the Representative Losses exceeds in lieu of delivery of such Escrow Shares to the Minority Stockholders prior to any distribution to the Minority Stockholder pursuant to this Agreement but not in lieu of or prior to any distribution required to be made to Parent hereunder. If and to the extent that there is not a sufficient number of Escrow Shares in the Escrow Account to pay in full the Stockholder Fees, the Minority Stockholders shall pay to the Representative (pro rata based on each Stockholder's percentage ownership determined as provided in Section 8(e) hereof) any such Stockholder Fees in cash up to an aggregate amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions)for all such Minority Stockholders of $56,000.
Appears in 1 contract
Samples: Escrow Agreement (Symbion Inc/Tn)
Appointment of the Representative. (a) In order Irrevocable Power of Attorney. Each Seller irrevocably constitutes and appoints Xxxxxxxx X. Xxxxxx as the Representative, with full and unqualified power to administer efficiently delegate to one or more Persons the determination authority granted to it, him or her hereunder, to act as such Person’s true and payment of the Merger Consideration (lawful attorney-in-fact and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises)substitution, and, by its execution hereof, and authorizes the Representative xxxxxx accepts acting for such appointment.
(b) The Representative is hereby authorized (i) Person and in such Person’s name, place and stead, in any and all capacities to take all action necessary in connection with the acceptance, rejection, determination do and payment of the Merger Consideration (perform every act and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims thing required or Actions related to this Agreement, (ii) to give and receive all notices required permitted to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate done in connection with the transactions contemplated by this AgreementAgreement and the other Transaction Documents, as fully to all intents and purposes as such Person might or could do in person, including, without limitation, the power:
(i) to execute determine the time and deliver place of Closing, to determine whether the Escrow Agreement and any amendments thereto as conditions to effect the representative of the Company Stockholders; Closing set forth in Section 6.2 have been satisfied (or to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent waive such amounts are released to the Company Stockholders) or the Representative Holdback Amount; 76 conditions), and to take such further actions under terminate (or not to exercise the Escrow right to terminate) this Agreement as the Representative deems to be necessary or appropriateprovided in Section 8.1;
(ii) to execute take any and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that action on behalf of such Sellers from time to time as the Representative deems may deem necessary or appropriate desirable to fulfill the interests and purposes of this Agreement and the other Transaction Documents and to engage agents and representatives (including accountants and legal counsel) to assist in connection with therewith, including the consummation delivery of the transactions Purchased Shares and stock powers to Purchaser at Closing as contemplated by this Agreementhereby;
(iii) to execute and deliver all amendments and waivers notices required to this Agreement that the Representative deems necessary be delivered by such Sellers or appropriate, whether prior to, at or after the Closingany of them;
(iv) to receive funds, make payments all notices required to be delivered to such Sellers or any of funds, and give receipts for fundsthem;
(v) to receive funds for negotiate, execute and deliver any amendments to and terminations of this Agreement and the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate other Transaction Documents and to apply such funds in payment for such expensesprepare any modification to the Disclosure Schedule;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that give such orders and instructions as the Representative deems necessary or appropriate in its sole discretion relating shall determine with respect to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; andother Transaction Documents and the transactions contemplated hereby and thereby;
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that retain a portion of the Merger Transaction Consideration in an amount equal for payment of expenses relating to the Representative Holdback Amount be withheld by (and deposited with) transactions or the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that and its Subsidiaries, the portion Representative, or any such Seller arising under or in connection with this Agreement and maintain a reserve for a period of time in connection with the Representative Holdback Amount delivered topayment of such expenses or obligations, and held by, the Representative on behalf to incur and pay such expenses and obligations out of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time reserve as the Representative shall determine deems appropriate in its sole discretion. Any remaining amounts from ;
(viii) to take all actions necessary to handle and resolve claims by or against Purchaser for indemnification by such Sellers under this Agreement;
(ix) to take all actions necessary to handle and resolve any adjustment to the Transaction Consideration pursuant to Section 1.4 or Section 1.5;
(x) to retain and to pay legal counsel and other professionals in connection with any and all matters referred to herein or relating hereto or any other Transaction Documents (which counsel or other professionals may, but need not, be counsel or other professionals engaged by the Company);
(xi) to make, acknowledge, verify and file on behalf of any such Seller applications, consents to service of process and such other documents, undertakings or reports as may be required by Law as determined by the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock in its, his or her sole discretion after consultation with counsel; and Options held by each such Company Stockholder.77
(dxii) If the Representative needs to make any payments make, exchange, acknowledge, deliver, amend and terminate all such other contracts, powers of attorney, orders, receipts, notices, requests, instructions, certificates, letters and other writings, and in general to Option Holders following the Closingdo all things and to take all actions, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable in its, his or her sole discretion may consider necessary or proper in connection with or to carry out the aforesaid, as fully as could such Sellers if personally present and acting. Each of such Sellers hereby irrevocably grants unto said attorney-in-fact and agent full power and authority to do and perform its responsibilities hereunder each and every act and thing necessary or resigns from desirable to be done in connection with the matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Representative may lawfully do or cause to be done by virtue hereof. Each of such positionSellers further agrees not to take any action inconsistent with the terms of this Section 9.18 or with the actions (or decisions not to act) of the Representative hereunder, and in any case shall not take any action or other position under this Agreement without the consent of the Representative. To the extent of any inconsistency between the actions (or decisions not to act) of the Representative and of any such Seller hereunder, the Company Stockholders actions (or, if applicable, their respective heirs, legal representatives, successors and permitted assignsor decisions not to act) who held a majority of the voting power represented by the Common Stock issued Representative shall control. Each of such Sellers further acknowledges and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes agrees that upon execution of this Agreement.
(f) All decisions, actions and instructions any delivery by the Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by the Representative pursuant to this Section 9.18, such Seller shall be conclusive bound by such documents as fully as if such Seller had executed and binding upon all of the Company Stockholdersdelivered such documents, and no Company Stockholder shall have the right any action (or decision not to object, dissent, protest act) taken or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given implemented by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 Agreement shall be binding upon the heirs, legal representatives, successors and permitted assigns all of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseSellers.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Stock Purchase Agreement (Fresh Del Monte Produce Inc)
Appointment of the Representative. (a) In order to administer efficiently the determination Each Seller and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, Sosnoff hereby irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment sole agent of the Merger Consideration (Sellers and Sosnoff to act on behalf of such Person regarding any adjustment thereto pursuant matter relating to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given arising under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, including for the power:
purposes of: (i) receiving any payments due from the Buyer that are required under the terms of this Agreement to execute and deliver be paid to the Escrow Agreement and Sellers or Sosnoff and, where applicable, distributing such payments to the Sellers or Sosnoff, pro rata based on their respective Purchase Price Percentages; (ii) taking any amendments thereto as the representative action on behalf of the Company Stockholders; to execute Sellers, any instructions individual Seller or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to Sosnoff that may be necessary or appropriate;
(ii) to execute and deliver all amendmentsdesirable, waivers, ancillary agreements, stock powers, certificates and documents that as determined by the Representative deems necessary or appropriate in its sole discretion, in connection with the consummation indemnification provisions set forth in Article IX or Article XIII and the amendment of this Agreement in accordance with Section 14.2; (iii) taking any action on behalf of the Sellers, any individual Seller or Sosnoff that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Sections 2.3 and 2.4; (iv) accepting notices on behalf of the Sellers, any individual Seller or Sosnoff in accordance with Section 14.4; (v) executing and delivering, on behalf of the Sellers, any individual Seller or Sosnoff, any notices, documents or certificates to be executed by the Sellers, any individual Seller or Sosnoff in connection with this Agreement and the transactions contemplated by this Agreement;
(iii) to execute ; and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do granting any consent or refrain from doing any further act or deed approval on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settleSellers, any claims individual Seller or Actions Sosnoff pursuant to this Agreement. As the representative of the Sellers, any individual Seller or Sosnoff under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse act as the Company Stockholders the amount of agent for each Seller and Sosnoff and shall have authority to bind each such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (Person in accordance with their Per Share Portions)the terms hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Evercore Partners Inc.)
Appointment of the Representative. (a) In order Each Seller irrevocably constitutes and appoints Xxxxxx X. Xxxxxx as the Representative, with full and unqualified power to administer efficiently delegate to one or more Persons the determination authority granted to it hereunder, to act as such Person’s true and payment of the Merger Consideration (lawful attorney-in-fact and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises)substitution, and, by its execution hereof, and authorizes the Representative xxxxxx accepts acting for such appointment.
(b) The Representative is hereby authorized (i) Person and in such Person’s name, place and stead, in any and all capacities to take all action necessary in connection with the acceptance, rejection, determination do and payment of the Merger Consideration (perform every act and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims thing required or Actions related to this Agreement, (ii) to give and receive all notices required permitted to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate done in connection with the transactions contemplated by this AgreementAgreement and the other Transaction Agreements, as fully to all intents and purposes as such Person might or could do in person, including, without limitation, the power:
(i) to execute determine the time and deliver place of Closing, to determine whether the Escrow Agreement and any amendments thereto as conditions to effect the representative of the Company Stockholders; Closing set forth in Section 5 have been satisfied (or to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent waive such amounts are released to the Company Stockholders) or the Representative Holdback Amount; conditions), and to take such further actions under terminate (or not to exercise the Escrow right to terminate) this Agreement as the Representative deems to be necessary or appropriateprovided in Section 8.19;
(ii) to execute take any and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the action on behalf of such Sellers from time to time as Representative deems may deem necessary or appropriate desirable to fulfill the interests and purposes of this Agreement and the other Transaction Agreements and to engage agents and representatives (including accountants and legal counsel) to assist in connection with therewith, including the consummation delivery of the transactions Purchased Interest and membership interest powers to Purchaser as contemplated by this Agreementhereby;
(iii) to execute and deliver all amendments and waivers notices required to this Agreement that the Representative deems necessary be delivered by such Sellers or appropriate, whether prior to, at or after the Closingany of them;
(iv) to receive funds, make payments all notices required to be delivered to such Sellers or any of funds, and give receipts for fundsthem;
(v) to receive funds for negotiate, execute and deliver any amendments to and terminations of this Agreement and the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate other Transaction Agreements and to apply such funds in payment for such expensesprepare any modification to the Disclosure Schedule;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the give such orders and instructions as Representative deems necessary or appropriate in its his sole discretion relating shall determine with respect to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; andother Transaction Agreements and the transactions contemplated hereby and thereby;
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that retain a portion of the Merger Consideration in an amount equal Purchaser Price for payment of expenses relating to the Representative Holdback Amount be withheld by (and deposited with) transactions or the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered toCompany, and held byRepresentative, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by or any such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s Seller arising under or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by and maintain a reserve for a period of time in connection with the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees expenses or obligations, and to incur and pay such expenses from the and obligations out of such reserve as Representative Holdback Amount deems appropriate in his sole discretion;
(viii) to take all actions necessary to handle and the Representative shall be authorized resolve claims by or against Purchaser for indemnification by such Sellers under this Agreement;
(ix) to withhold from take all actions necessary to handle and resolve any distribution from the Adjustment Escrow Account made adjustment to the Company Stockholders any amounts reasonably anticipated Purchase Price under this Agreement;
(x) to be necessary retain and to pay for legal counsel and other professionals in connection with any and all matters referred to herein or relating hereto or any other Transaction Agreements (which counsel or other professionals may, but need not, be counsel or other professionals engaged by the Company);
(xi) to make, acknowledge, verify and file on behalf of any such reasonable fees Seller applications, consents to service of process and expenses such other documents, undertakings or reports as may be required by Law as determined by Representative in excess his sole discretion after consultation with counsel; and
(xii) to make, exchange, acknowledge, deliver, amend and terminate all such other contracts, powers of attorney, orders, receipts, notices, requests, instructions, certificates, letters and other writings, and in general to do all things and to take all actions, that Representative in his sole discretion may consider necessary or proper in connection with or to carry out the Representative Holdback Amountaforesaid, as fully as could such Sellers if personally present and acting.
(kb) The Company Stockholders shall severally Each of such Sellers hereby irrevocably grants unto said attorney-in-fact and not jointly (in accordance with their Per Share Portions), indemnify agent full power and hold harmless the Representative from authority to do and against, compensate it for, reimburse it for perform each and pay any every act and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and thing necessary or desirable to be done in connection with its activities the matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that Representative may lawfully do or cause to be done by virtue hereof. Each of such Sellers further agrees not to take any action inconsistent with the terms of this Section 8.22 or with the actions (or decisions not to act) of Representative hereunder, and in any case shall not take any action or other position under this Agreement without the consent of Representative. To the extent of any inconsistency between the actions (or decisions not to act) of Representative and of any such Seller hereunder, the actions (or decisions not to act) of Representative shall control. EACH SUCH SELLER ACKNOWLEDGES THAT IT IS HIS OR ITS EXPRESS INTENTION TO HEREBY GRANT A DURABLE POWER OF ATTORNEY UNTO REPRESENTATIVE AND THAT THIS DURABLE POWER OF ATTORNEY IS NOT AFFECTED BY SUBSEQUENT INCAPACITY OF SUCH SELLER. Each of such Sellers further acknowledges and agrees that upon execution of this Agreement, any delivery by Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by Representative pursuant to this Section 8.22, such Seller shall be bound by such documents as fully as if such Seller had executed and delivered such documents, and any action (or decision not to act) taken or otherwise implemented by Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions)binding upon all Sellers.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, Each Equityholder other than JMI hereby irrevocably appoints the Representative as his, her or its agent, attorney in such Equityholder’s true and lawful attorney-in-fact, proxy and representative (agent, with full power powers of substitution and resubstitution, in the premises)such Equityholder’s name, andplace and stead, by its execution hereofin any and all capacities, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, includinggranting unto said attorney-in-fact, without limitationproxy and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with this Agreement and the powertransactions contemplated by this Agreement as fully to all intents and purposes as such Equityholder might or could do in person, including for the purposes of:
(i) to execute and deliver the Escrow Agreement and taking any amendments thereto as the representative action on behalf of the Company Stockholders; to execute Equityholders or any instructions or directions to the Escrow Agent with respect to disbursements or individual Equityholder other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to than JMI that may be necessary or appropriatedesirable, as determined by the Representative in its sole discretion, in connection with the indemnification provisions set forth in Article X and the amendment of this Agreement in accordance with Section 11.2;
(ii) to execute and deliver all amendmentstaking any action on behalf of the Equityholders or any individual Equityholder other than JMI that may be necessary or desirable, waivers, ancillary agreements, stock powers, certificates and documents that as determined by the Representative deems necessary or appropriate in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the consummation of the transactions contemplated by adjustments or consideration payable under this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that accepting notices on behalf of the Representative deems necessary Equityholders or appropriate, whether prior to, at or after the Closingany individual Equityholder other than JMI in accordance with Section 11.4;
(iv) to receive funds, make payments of funds, executing and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representativedelivering, on behalf of the Company StockholdersEquityholders or any individual Equityholder other than JMI, any notices, documents or certificates to satisfy potential future obligations be executed by the Equityholders or any individual Equityholder other than JMI in connection with this Agreement and the transactions contemplated by this Agreement; and
(v) granting any consent or approval on behalf of the Company Stockholders; provided that Equityholders or any individual Equityholder other than JMI under this Agreement. As the portion representative of the Representative Holdback Amount delivered to, and held byEquityholders or any individual Equityholder other than JMI under this Agreement, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time act as the Representative representative, agent and proxy for each Equityholder other than JMI and shall determine have authority to bind each Equityholder other than JMI in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of accordance with this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder such Equityholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder The Representative shall have no duties or obligations hereunder, including any cause of action against the Representative for any action taken or not takenfiduciary duties, decision made or instruction given except those set forth herein, and such duties and obligations shall be determined solely by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The express provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Merger Agreement (Vocus, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions actions related to this Agreement, each Company Stockholdereffective upon and by virtue of the Requisite Stockholder Approval, by his, her or its acceptance and without any further act of any portion of the Merger ConsiderationCompany Stockholders (provided the appointment contemplated by this Section 9.17(a) will be confirmed in the Stockholder Confirmations), as well as, in certain cases, through separate instruments, irrevocably appoints the Representative is hereby irrevocably appointed as his, her or its the agent, attorney in fact, proxy fact and representative (with full power of substitution in the premises)) of all of the Company Stockholders for all purposes under this Agreement, and, by its execution hereof, the Representative xxxxxx hereby accepts such appointment.
(b) The Representative is hereby authorized (and the Stockholder Confirmations will confirm that the Representative is authorized) (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions actions under this Agreement on behalf of such Company StockholderAgreement.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion; provided that the Representative shall not distribute any portion of the Representative Holdback Amount to the Company Stockholders until the earlier of (i) the six (6)-month anniversary of the Closing and (ii) if a relevant taxing authority of the PRC makes a final, non-appealable determination or assessment that the Merger is taxable under Public Notice 7 prior to such six (6)-month anniversary of the Closing, the date on which the Representative pays the applicable Tax so determined or assessed under Public Notice 7; provided, further that, notwithstanding the foregoing in this Section 9.17(c), if a relevant taxing authority of the PRC makes a formal determination or assessment that the Merger is taxable under Public Notice 7 prior to the six (6)-month anniversary of the Closing and the Representative appeals such determination or assessment without paying the applicable Tax, the Representative shall not distribute any portion of the Representative Holdback Amount to the Company Stockholders until the date on which the Representative pays the applicable Tax determined or assessed under Public Notice 7 or the Representative’s appeal is ruled (in a final, non-appealable ruling) in the Representative’s favor. Any remaining amounts from the Representative Holdback Xxxxxx Amount returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder. For the avoidance of doubt, nothing in this Section 9.17(c) shall limit the Representative’s obligations under Section 6.10(e).
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systemssystems after the Company or such Subsidiary’s receipt from (or withholding of payment to) the Representative of an equivalent amount.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx Parent and Xxxxxx Merger Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunderhereunder as the act of each Company Stockholder in all matters referred to herein, and no Party, Party or Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Appointment of the Representative. (a) In order The undersigned acknowledges, agrees, and accepts that pursuant to administer efficiently the determination Merger Agreement and payment on behalf of the Merger Consideration (undersigned and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement all of any claims or Actions related to this Agreement, each Company Stockholder, by his, her hers or its acceptance affiliates, heirs, personal representatives, assigns, and successors, TH Xxx Xxxxxx Advisors, L.P. is authorized, appointed and empowered to serve as the representative of any portion of each Seller Party with respect to the matters expressly set forth in the Merger ConsiderationAgreement to be performed by Seller Representative, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution substitution, to the extent, and subject to the limitations, set forth in the premises)Merger Agreement. This appointment is not as an agent but as a term of the Merger contemplated by the Merger Agreement and accordingly such appointment is irrevocable by action of any Seller Party. Further, andthis appointment is deemed coupled with an interest and may not be revoked for any reason, except as expressly otherwise provided in the Merger Agreement. The undersigned hereby agrees to be bound by its execution hereof, (a) the appointment of Seller Representative xxxxxx accepts such appointment.
as the undersigned’s representative for the purposes of the Merger Agreement and (b) The Representative is hereby authorized (i) to take the taking by Seller Representative, in its capacity as such, of any and all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) actions and the defense and/or settlement making of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by it under the Representative hereunder, Merger Agreement and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub the Ancillary Documents (including the Escrow Agreement) for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions and on behalf of the Representative.
(h) Seller Parties. The provisions undersigned agrees, severally, but not jointly, based on his, her or its respective percentage of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have the Merger Consideration paid to the undersigned in connection accordance with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights terms of the Company Stockholders hereunderMerger Agreement (as determined in good faith by Seller Representative), whether pursuant to testamentary dispositionindemnify and hold harmless Seller Representative from any and all reasonable losses, liabilities and expenses (including the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative of counsel) arising out of or in connection with this Seller Representative’s execution and performance (solely in its capacity as Seller Representative and not in its capacity as a Seller Party) of the Merger Agreement shall be paid and the Ancillary Documents, except for fraud or willful misconduct by Seller Representative. The undersigned agrees and consents to the Company Stockholders on a pro rata basis based on payment to Seller Representative of the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify the terms of the Merger Agreement. The undersigned agrees to otherwise abide by and hold harmless be bound by the 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 terms of and in connection with its activities as the Representative under this AgreementMerger Agreement relevant to Seller Representative. Buyer, the Escrow Agreement other Buyer Indemnitees, and the other Escrow Agent shall be entitled to conclusively rely upon any action taken and any agreements contemplated hereby (“or amendments entered into by Seller Representative Losses”), in each case its capacity as such Representative Loss is suffered and shall have no liability or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse obligation to any Seller Party of the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions)respect thereof.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently The Selling Members and the determination and payment of Accel Parties hereby appoint and, in the event that the Merger Consideration (is approved by the Requisite BRINC Vote, effective upon the Requisite BRINC Vote and without the further act of any adjustment thereto pursuant Person, the other Stockholders and Optionholders shall be deemed to Section 2.05 hereof) have appointed, the Representative as each Equityholder’s true and lawful attorney-in-fact and agent to execute in the name and on behalf of such Equityholder the Escrow Agreement and to make all decisions with respect to the defense and/or settlement of any claims for which a Kenexa Indemnified Party may claim to be entitled to indemnity under Article IX or Actions related this Article X and with respect to disbursements from the Indemnity Escrow Account. The Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, each Company Stockholderand no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the Representative.
(b) Each Equityholder that accepts payment of any consideration in respect of the Transactions as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of a Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of Article IX or this Article X shall be binding upon such Equityholder and the successors and assigns of such Equityholder.
(c) In addition, each Equityholder that accepts payment of any consideration in respect of the Transactions as contemplated herein shall be deemed, by such acceptance of any portion of the Merger Considerationpayment, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as or by his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of his, her or its respective Affiliates will have any claims or Actions related rights to this Agreementcontribution or indemnity from Parent, (ii) to give and receive all notices required to be given under this AgreementKenexa Technology, Acquisition Sub, BRLLC, BRINC, the Escrow Agreement and the other agreements contemplated hereby to which all Surviving Corporation or any of their respective Subsidiaries or any of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative respective Affiliates of the Company Stockholders; to execute any instructions or directions to the Escrow Agent foregoing Persons with respect to disbursements any amounts paid by any Equityholder pursuant to Article IX or other matters thereunder; this Article X or any liabilities that such Equityholder may have for actual fraud, provided, that nothing contained in this Section 10.8(c) shall be deemed to pay constitute a waiver or release by any expenses Person of the Company Stockholders any rights to indemnification from BRLLC, BRINC or the Representative from the Adjustment Escrow Amount (Surviving Corporation pursuant to the extent such amounts are released to DGCL, the Delaware Limited Liability Company Stockholders) Act, the Operating Agreement or the Representative Holdback Amount; Certificate of Incorporation or bylaws of BRINC or any applicable policy of director and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholderofficer liability insurance.
(d) If The Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Equityholder, Parent, Kenexa Technology or Acquisition Sub, or any other evidence deemed by the Representative needs to make be reliable. The Representative shall be fully justified in failing or refusing or take any payments action under this Agreement unless it shall have received such advice or concurrence of the Equityholders as it deems appropriate or unless it shall have been expressly indemnified to Option Holders following its satisfaction by the ClosingEquityholders severally against any and all liability and expense that it may incur by reason of taking or continuing to take any such action. The Representative shall in all cases be fully protected in acting, Parent agrees or refraining from acting, under this Agreement in accordance with a request of Equityholders who have a right to use commercially reasonable efforts receive a majority of the Net Enterprise Value paid to cause the Company Equityholders, and its Subsidiaries such request, and any such action taken or failure to make such payments through act pursuant thereto, shall be binding upon all of the Company’s or such Subsidiaries’ payroll systemsEquityholders.
(e) In The Representative shall not be liable for any error of judgment, or any action taken or omitted to be taken hereunder except in the event that the case of its intentional wrongdoing for personal benefit. The Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed entitled to consult with counsel of its choosing and shall be fully protected in any act taken, suffered, or permitted by it in good faith in accordance with the Representative for all purposes advice of this Agreementcounsel.
(f) All decisions, actions and instructions by the The Representative shall not be paid any fee for services to be rendered hereunder. The Representative shall be conclusive and binding upon reimbursed from the Indemnity Escrow Account for up to $35,000 of all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this performing its duties hereunder (including under Sections 2.14 and 2.17 and Articles IX and X) or under the Escrow Agreement shall be paid and thereafter by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay Equityholders for all such reasonable fees and expenses in excess of the Representative Holdback Amount$35,000.
(kg) The Company Stockholders Equityholders, jointly and severally, shall severally indemnify and hold the Representative harmless against any and all losses, claims, damages, liabilities, and expenses, including reasonable costs of investigation, attorneys’ fees, and disbursements that may be imposed on the Representative or incurred by the Representative in connection with the performance of its duties under this Agreement, including any litigation arising from this Agreement or the Escrow Agreement or involving their subject matter, unless such loss, liability, claim or expense shall have been determined by a court of competent jurisdiction to be a result of the Representative’s intentional wrongdoing or for personal benefit. Except in the case of fraud by an Equityholder, such Equityholder’s liability under Article IX or this Article X shall not jointly exceed the portion of the Net Enterprise Value received by such Equityholder pursuant to this Agreement. Anything in this Agreement to the contrary notwithstanding, in no event shall the Representative be liable to the Equityholders for special, indirect or consequential loss or damage of any kind whatsoever (in accordance with their Per Share Portionsincluding lost profits), even if the Representative has been advised of the likelihood of such damages and regardless of the form of action.
(h) The Representative may resign at any time. The Representative may be removed at any time by a writing signed by Equityholders who have the right to receive a majority of the Net Enterprise Value paid or payable to the Equityholders. If the Representative or any successor shall resign, be so removed, or become unable to act as the Representative, a replacement shall promptly be appointed by a writing signed by Equityholders who have the right to receive a majority of the Net Enterprise Value paid or payable to the Equityholders. The Representative shall promptly notify Kenexa Technology and the Escrow Agent of any such resignation, removal or appointment.
(i) Parent, Kenexa Technology, Acquisition Sub, the Surviving Corporation and the Escrow Agent shall be entitled to rely on the actions taken by the Representative, and that each action taken by the Representative shall be binding on each of the Equityholders as if such action had been performed by each such Equityholder. The Equityholders, jointly and severally, shall indemnify and hold harmless the Representative Kenexa Indemnified Parties and the Escrow Agent from and againstagainst any losses that any Kenexa Indemnified Party or the Escrow Agent may suffer, 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 sustain or become subject to as the Representative under this Agreement, result of any claim by any of the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, Equityholders that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud an action taken by the Representative, Representative purportedly on behalf of the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, Equityholders pursuant to the extent the amount authorization in Article IX or this Article X is not binding on or enforceable against any of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions)Equityholders.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, Each Stockholder hereby irrevocably appoints the Representative as his, her or its agent, attorney in such Stockholder’s true and lawful attorney-in-fact, proxy and representative (agent, with full power powers of substitution and resubstitution, in the premises)such Stockholder’s name, andplace and stead, by its execution hereofin any and all capacities, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, includinggranting unto said attorney-in-fact, without limitationproxy and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with this Agreement and the powertransactions contemplated by this Agreement as fully to all intents and purposes as such Stockholder might or could do in person, including for the purposes of:
(i) to execute and deliver the Escrow Agreement and taking any amendments thereto as the representative action on behalf of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to any individual Stockholder that may be necessary or appropriatedesirable, as determined by the Representative in its sole discretion, in connection with the indemnification provisions set forth in Article VII or Article XI and the amendment of this Agreement in accordance with Section 12.2;
(ii) to execute and deliver all amendmentstaking any action on behalf of the Stockholders or any individual Stockholder that may be necessary or desirable, waivers, ancillary agreements, stock powers, certificates and documents that as determined by the Representative deems necessary or appropriate in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the consummation of the transactions contemplated by adjustments or consideration payable under this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that accepting notices on behalf of the Representative deems necessary Stockholders or appropriate, whether prior to, at or after the Closingany individual Stockholder in accordance with Section 12.4;
(iv) to receive funds, make payments of funds, executing and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representativedelivering, on behalf of the Company StockholdersStockholders or any individual Stockholder, any notices, documents or certificates to satisfy potential future obligations be executed by the Stockholders or any individual Stockholder in connection with this Agreement and the transactions contemplated by this Agreement; and
(v) granting any consent or approval on behalf of the Company Stockholders; provided that Stockholders or any individual Stockholder under this Agreement. As the portion representative of the Representative Holdback Amount delivered to, and held byStockholders or any individual Stockholder under this Agreement, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time act as the Representative representative, agent and proxy for each Stockholder and shall determine have authority to bind each Stockholder in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of accordance with this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder The Representative shall have no duties or obligations hereunder, including any cause of action against the Representative for any action taken or not takenfiduciary duties, decision made or instruction given except those set forth herein, and such duties and obligations shall be determined solely by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The express provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination and payment Each of the Merger Consideration (TBO Shareholders irrevocably constitutes, appoints and any adjustment thereto pursuant to Section 2.05 empowers, effective from and after the date hereof) , Xxxxx Xxxxxx as the Representative, for the benefit of the TBO Shareholders and the defense and/or settlement exclusive agent and attorney-in-fact to act on behalf of any claims or Actions related to this Agreementeach TBO Shareholder, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution substitution, and authorizes the Representative acting for such TBO Shareholder and in such TBO Shareholder’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done in connection with and to facilitate the premises)consummation of the transactions contemplated hereby, as fully to all intents and purposes as such TBO Shareholder might or could do in person, including, without limitation:
(i) to negotiate, execute and deliver such waivers, consents and amendments (other than any written consent of the TBO Shareholders adopting this Agreement) under this Agreement and the consummation of the transactions contemplated hereby as the Representative, in its sole discretion, may deem necessary or desirable;
(ii) to enforce and protect the rights and interests of the TBO Shareholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, and to take any and all actions which the Representative believes are necessary or appropriate under this Agreement for and on behalf of the TBO Shareholders including, consenting to, compromising or settling any claims, conducting negotiations with Parent, the Surviving Company and their respective representatives regarding such claims, and, in connection therewith, to (i) assert any claim or institute any action, proceeding or investigation; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by its execution hereofParent, the Surviving Company or any other Person, or by any Governmental Authority against the Representative xxxxxx accepts and/or any of the TBO Shareholders, and receive process on behalf of any or all TBO Shareholders in any such appointmentclaim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (iii) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; (iv) settle or compromise any claims asserted under this Agreement, including with respect to any Earn-Out Payment or indemnification claim; and (v) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the 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;
(iii) to refrain from enforcing any right of the TBO Shareholders arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the part of the Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Representative or by the TBO Shareholders unless such waiver is in writing signed by the waiving party or by the Representative;
(iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; and/or
(v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the TBO Shareholders in connection with any matter arising under this Agreement.
(b) The Representative is hereby authorized shall be entitled to receive reimbursement from, and be indemnified by, the TBO Shareholders for certain expenses, charges and Liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Representative hereunder, (i) the Representative shall incur no responsibility whatsoever to take any TBO Shareholders by reason of any error in judgment or other act or omission performed or omitted hereunder, other than any act or failure to act which represents willful misconduct by the Representative, and (ii) the Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Representative pursuant to such advice shall in no event subject the Representative to Liability to any TBO Shareholders.
(c) Each TBO Shareholder shall indemnify, severally and not jointly, based on such TBO Shareholder’s pro rata portion of the Parent Common Stock and Parent Preferred Stock (on an as-converted basis, without regard to any limitations on conversion set forth in the Certificate of Designations) received by it hereunder, the Representative against all action necessary Damages, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acceptanceacts or omissions of the Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the Liability of the Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, rejection, determination and upon written notice from the Representative to the TBO Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each TBO Shareholder shall promptly deliver to the Merger Consideration Representative full payment of his or her pro rata portion of the amount of such deficiency.
(d) All of the indemnities, powers and immunities granted to the Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement. 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 TBO Shareholder and (ii) shall survive the consummation of the Merger, and any adjustment thereto action taken by the Representative pursuant to Section 2.05 hereofthe authority granted in this Agreement shall be effective and absolutely binding on each TBO Shareholder notwithstanding any contrary action of or direction from such TBO Shareholder, except for actions or omissions of the Representative constituting willful misconduct.
(e) Parent and the defense and/or settlement of any claims Surviving Company shall have the right to rely upon all actions taken or Actions related omitted to be taken by the Representative pursuant to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of which actions or omissions shall be legally binding upon the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:TBO Shareholders.
(if) to execute Each of TBO, Merger Sub and deliver the Escrow Agreement Parent acknowledges and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents agrees that the Representative deems necessary or appropriate is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute hereby. Accordingly, each of TBO, Merger Sub and deliver all amendments Parent acknowledges and waivers to this Agreement agrees that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered shall have no Liability to, and held by, the Representative on behalf of each Company Stockholder shall not be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative liable for any action taken Damages of, any of TBO, Merger Sub or not taken, decision made or instruction given by Parent in connection with any obligations of the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required Agreement or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub otherwise in reliance upon the written instructions or decisions of the Representative.
(h) The provisions respect of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights Agreement or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 hereby, except to the extent such Damages shall be binding upon proven to be the heirs, legal representatives, successors and permitted assigns direct result of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred willful misconduct by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment performance of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amounthis obligations hereunder.
(kg) The Company Stockholders Each TBO Shareholder shall severally acknowledge and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless consent to the 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 provisions of and in connection with its activities as the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that Section 10.17 in the event that Letter of Transmittal executed and delivered by him, her or it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable pursuant to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions)Article III.
Appears in 1 contract
Samples: Merger Agreement (Tiger Media, Inc.)
Appointment of the Representative. (a) In order to efficiently administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related for indemnity by a Buyer Indemnitee pursuant to this AgreementArticle IX hereof, each Company Stockholder, by his, her or its acceptance of any portion Xxxx Xxxxxx is hereby appointed to serve as the representative (the "REPRESENTATIVE") of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Shareholders. The Representative as his, her or its agent, attorney in fact, proxy and representative (with shall have full power of substitution in the premises)and authority to make, and, by its execution hereof, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment on behalf of the Merger Consideration (and any adjustment thereto pursuant Shareholders, all decisions relating to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required for which any Buyer Indemnitee may claim to be given under this Agreement, the Escrow Agreement entitled to indemnity pursuant to Article IX hereof and the other agreements contemplated hereby otherwise to which all act on behalf of the Company Stockholders are subject, and (iii) Shareholders in all respects with respect to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute amendment or termination thereof. All decisions and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company StockholdersShareholders, and no Company Stockholder Shareholder shall have the right to objectobject to, dissentdissent from, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(gb) Xxxxxx and Xxxxxx Neither Parent, Acquisition Sub nor Surviving Corporation shall be able have the right to rely conclusively on the instructions and decisions of the Representative as object to, protest or otherwise contest any matter related to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be procedures for action being taken by the Representative hereunderas between the Representative and the Shareholders. Parent, Acquisition Sub and Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against the Representative, and no Partyany of its Affiliates, Company Stockholder shall have that relate to the Representative's role as such, including any cause of action against Parent or Merger Sub claims for any action or inaction taken or not taken by Parent or Merger Sub the Representative in reliance upon the written instructions or decisions of the Representativeconnection herewith.
(hc) The Each Shareholder that accepts payment of Merger Consideration as contemplated herein shall be deemed, by such acceptance of payment, or by their respective execution of the Letter of Transmittal, or by the approval of this Agreement by the holders of a majority of the outstanding Common Stock of the Company, as the case may be, to have agreed that (i) the provisions of this Section 9.17 9.05 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder Shareholder may have in connection with the transactions contemplated by this Agreement.
, (iii) The the remedy at law for any breach of the provisions of this Section 9.17 9.05 would be inadequate, (iii) any Shareholder shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if such Shareholder brings an action to enforce the provisions of this Section 9.05, and (iv) the provisions of this Section 9.05 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholder.
(jd) All reasonable fees In addition, by their approval of this Agreement, the Shareholders shall be deemed to have waived any claims they may have or assert, including those that may arise in the future, against the Representative and expenses incurred any of its Affiliates, for any action or inaction taken or not taken by the Representative in connection herewith.
(e) Any notice or communication delivered by Parent, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Acquisition Sub and the Surviving Corporation, on the one hand, and the Shareholders, on the other, be deemed to have been delivered to all Shareholders. Parent, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communications or writings given or executed by the Representative in connection with this Agreement any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Acquisition Sub and the Surviving Corporation shall be paid entitled to disregard any notices or communications given or made by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 Shareholders in connection with its activities as the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered any claims for indemnity unless given or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by made through the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Merger Agreement (Magnetek Inc)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Closing Residual Cash Consideration and payment of Final Residual Cash Consideration in accordance with the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) terms hereof and the defense and/or settlement of any claims claim or Actions related to Liability in connection with this Agreement or the transactions contemplated hereby, the Stockholders and Optionholders, by their adoption and approval of this Agreement, each Company Stockholder, by his, her or its through the acceptance of any portion of the Merger Consideration, Consideration payable hereunder as well as, in certain cases, through separate instrumentsinstruments (including the Requisite Stockholder Approval and the Letters of Transmittal), irrevocably appoints appoint the Representative as his, her or its their agent, attorney in fact, proxy fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, rejection and determination and payment of the Merger Closing Residual Cash Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the Final Residual Cash Consideration and/or the defense and/or settlement of any claims claim or Actions related to Liability in connection with this AgreementAgreement or the transactions contemplated hereby, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders and Optionholders are subject, subject and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(iiA) to execute and deliver all amendmentsconsents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iiiB) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(ivC) to receive funds, make payments of fundsfunds (including from the Representative Reserve Fund), and give receipts for funds;
(vD) to receive funds for the payment of expenses of the Company Stockholders and Optionholders (including, without limitation, including the Representative Holdback AmountReserve Fund), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(viE) to do or refrain from doing any further act or deed on behalf of the Company Stockholders and Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders and Optionholders could do if personally present; and
(viiF) to receive service of process in connection with, and to defend and/or settle, with any claims or Actions under this Agreement on behalf of such Company StockholderAgreement.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders and Optionholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock Company Shares issued and outstanding immediately prior to the Effective Time shall Time, will select another representative to fill such vacancy, vacancy and such substituted representative shall will be deemed to be the Representative for all purposes of this Agreement.
(fd) All decisions, decisions and actions and instructions by the Representative shall Representative, including the defense or settlement of any claim or Liability in connection with this Agreement or the transactions contemplated hereby, will be conclusive and binding upon all of the Company StockholdersStockholders and Optionholders, and no Company Stockholder shall or Optionholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent, the Paying Agent and the Escrow Agent will be able to rely conclusively on the instructions and decisions of the Representative and treat the Representative as the duty appointed representative of the Stockholders and Optionholders and any decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Stockholder or Optionholder, as applicable, including as to the settlement or compromise of any claim or Liability in connection with this Agreement or the transactions contemplated hereby and any other actions required to be taken by the Representative hereunder. No Party Parent and the Company may, and the Escrow Agent and the Paying Agent shall, disregard any notice or Company instruction received directly from any Stockholder shall or Optionholder, other than the Representative. Parent, Merger Sub, the Paying Agent and the Escrow Agent are hereby relieved from any Liability to any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Representative, and no party hereunder or Stockholder or Optionholder will have any cause of action against Parent, Merger Sub, the Paying Agent or the Escrow Agent for any action taken by such Person in reliance upon the instructions or decisions of the Representative.
(f) All actions, decisions and instructions of the Representative will be conclusive and binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder will have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud fraud or willful misconduct by the Representative.;
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 11.20 are independent and severable, are irrevocable and coupled with an interest and shall will be enforceable notwithstanding any rights or remedies that any Company Stockholder or Optionholder may have in connection with the transactions contemplated by this Agreement.; and
(ih) The provisions of this Section 9.17 shall 11.20 will be binding upon the heirs, legal representatives, successors and permitted assigns of each Company StockholderStockholder and Optionholder, and any references in this Agreement to a Company Stockholder shall or an Optionholder or the Stockholders or Optionholders will mean and include the successors to the rights of the Company Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, You hereby irrevocably appoints appoint the Representative as hisyour representative, her or its attorney-in-fact and agent, attorney in fact, proxy and representative (with full power of substitution to act in the premises)name, andplace and stead of you in accordance with the terms of the Merger Agreement and to act on your behalf in any amendment of or action involving the Merger Agreement, by its execution hereofincluding initiating, the Representative xxxxxx accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary prosecuting, defending, negotiating, settling or otherwise dealing with claims on behalf of or against you arising under or in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Paying Agent Agreement and Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subjector any transactions or matters related thereto, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Representative shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreementhereby, including, without limitation, including the power:
(ia) to execute and deliver deliver, and administer all matters pertaining to performance under, the Paying Agent Agreement and the Escrow Agreement; and
(b) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of HealthPocket to consummate the transactions contemplated by the Merger Agreement, the Paying Agent Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunderAgreement; to pay any expenses of the Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;and
(iic) to negotiate, execute and deliver all amendmentsancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, ancillary agreementsundertakings, stock powers, certificates amendments and other documents that the Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this the Merger Agreement;, the Paying Agent Agreement and the Escrow Agreement; and
(iiid) to execute give and deliver receive all amendments notices and waivers communications to this be given or received under the Merger Agreement, the Paying Agent Agreement that and the Representative deems necessary or appropriate, whether prior to, at or after Escrow Agreement and to receive service of process in connection with any claims under the Closing;Merger Agreement and the transactions contemplated thereby; and
(ive) to receive fundstake all actions that, make payments of funds, and give receipts for funds;
(v) to receive funds for under the payment of expenses of the Company Stockholders (including, without limitationMerger Agreement, the Representative Holdback Amount)Paying Agent Agreement and the Escrow Agreement and pursuant to the transactions contemplated thereby, to deposit such funds in such accounts as may be taken by you (or the Representative deems appropriate Representative) and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on your behalf of the Company Stockholders that the Representative deems necessary or appropriate in its the Representative’s sole discretion relating to the subject matter of this the Merger Agreement and the transactions contemplated hereby as fully and completely as the Company Stockholders you could do if personally present; and
(vii) to receive service of process in connection with, and to defend and/or settle, any claims or Actions under this Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(f) All decisions, actions and instructions by the Representative shall be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement.
(i) The provisions of this Section 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(j) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Merger Agreement (Health Insurance Innovations, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Consideration (Estimated Purchase Price and any adjustment thereto pursuant to Section 2.05 hereof) the Final Purchase Price and the defense and/or settlement of any claims or Actions related to for Losses, the Sellers, by their execution of this Agreement, each Company Stockholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints appoint the Representative as his, her or its their agent, attorney in fact, proxy fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx hereby accepts such appointment.
(b) The Representative is hereby authorized (i1) to take all action necessary in connection with the acceptance, rejection, rejection and determination and payment of the Merger Consideration (Estimated Purchase Price and any adjustment thereto pursuant to Section 2.05 hereof) the Final Purchase Price and the defense and/or settlement of any claims or Actions related for Losses (including the power to this Agreementpursue claims against Buyer, compromise any claim on behalf of the Sellers and to transact matters of litigation, in each case pursuant to Article X), (ii2) to give and receive all notices required to be given under this Agreement, the Deposit Escrow Agreement, the Indemnification, Remediation and Adjustment Escrow Agreement and the any other agreements contemplated hereby to which all of the Company Stockholders Sellers are subject, and (iii3) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, including the power:
(i) to execute and deliver the Deposit Escrow Agreement and the Indemnification, Remediation and Adjustment Escrow Agreement and any amendments or waivers thereto as the representative of the Company StockholdersSellers; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders Sellers or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Indemnification, Remediation and Adjustment Escrow Agreement and the Deposit Escrow as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendmentsconsents, waivers, ancillary agreements, stock share powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders Sellers (including, without limitation, including the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(viivi) to receive service of process in connection with, and to defend and/or settle, with any claims or Actions under this Agreement on behalf of such Company StockholderAgreement.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders Sellers (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held held, directly or indirectly, a majority of the voting power represented by the Common Stock Units issued and outstanding immediately prior to the Effective Time shall Closing, will select another representative to fill such vacancy, vacancy and such substituted representative shall will be deemed to be the Representative for all purposes of this Agreement.
(fd) All decisionsSubject to the Representative complying in all material respects with the terms of this Agreement, all instructions, decisions and actions and instructions by the Representative shall Representative, including the defense or settlement of any claims for Losses, and including the distribution of amounts held in the Escrow Account, will be conclusive and binding upon all of the Company StockholdersSellers, and no Company Stockholder shall Seller will have the right to object, dissent, protest or otherwise contest the same. No Party same or Company Stockholder shall otherwise have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement.
(e) The Representative will promptly provide written notice to the Sellers upon receiving service of process in connection with any claims under this Agreement, except for Fraud and upon any settlement of such claims by the Representative.
(gf) Xxxxxx and Xxxxxx Sub shall Buyer will be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (Estimated Purchase Price and the Final Purchase Price and the settlement of any adjustment thereto pursuant to Section 2.05 hereof) claims for Losses and the distribution of any amounts held in the Escrow Account and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall party hereunder will have any cause of action against Parent or Merger Sub Buyer for any action taken by Parent or Merger Sub Buyer in reliance upon the written instructions or decisions of the Representative.
(g) The Representative shall be indemnified and held harmless by the Sellers against all Losses paid or incurred in connection with any action, suit, proceeding or claim to which the Representative is made a party by reason of the fact that the Representative was acting as the Representative pursuant to this Agreement; provided, however, that the Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Representative constitute fraud, gross negligence, bad faith or willful misconduct.
(h) The Representative may use the Representative Holdback Amount in its sole discretion to pay the expenses incurred by the Representative under the authorization granted in this Agreement, including, without limitation, any out-of-pocket expenses incurred by the Representative whether in respect of indemnification claims, the defense thereof or otherwise.
(i) The provisions of this Section 9.17 12.23 are independent and severable, are irrevocable and coupled with an interest and shall will be enforceable notwithstanding any rights or remedies that any Company Stockholder Seller may have in connection with the transactions contemplated by this Agreement.
(ij) The provisions of this Section 9.17 shall 12.23 will be binding upon the heirs, legal representatives, successors and permitted assigns of each Company StockholderSeller, and any references in this Agreement to a Company Stockholder shall Seller or the Sellers will mean and include the successors to the rights of the Company Stockholders Sellers hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(jk) All reasonable fees and expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made Notwithstanding anything to the Company Stockholders any amounts reasonably anticipated contrary contained in this Section 12.23, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification or a principal defense will be ineffective by reason only of it having been made or given to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions)or by a Seller, indemnify and hold harmless the 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 the Representative under this Agreementcase may be, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in directly if each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by of the Representative, the Representative shall reimburse the Company Stockholders the amount Buyer and such Seller consent by virtue of such indemnified Representative Loss attributable not objecting to such Fraud. The Representative Losses shall be satisfied first from dealings without the Representative Holdback Amount and then, to the extent the amount intermediary of the Representative Losses exceeds amount available Representative, such consent not to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions)be unreasonably withheld.
Appears in 1 contract
Samples: Equity Purchase Agreement (ClubCorp Holdings, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination and payment of the Merger Closing Residual Cash Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) the Final Residual Cash Consideration and the defense and/or settlement of any claims for Losses for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8 .02 or Actions related to this AgreementSection 10.01(l) hereof, each Company StockholderUnitholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Closing Residual Cash Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) the Final Residual Cash Consideration and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Unitholders and to transact matters of litigation) for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8.02 or Actions related to this AgreementSection 10.01(l) hereof, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders Unitholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company StockholdersUnitholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders Unitholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders Unitholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to take or refrain from taking all actions necessary in direction and support of the Unitholders rights and obligations in respect of the matters set forth on the Special Disputes Schedule;
(vii) to do or refrain from doing any further act or deed on behalf of the Company Stockholders Unitholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders Unitholders could do if personally present; and
(viiviii) to receive service of process in connection with, and to defend and/or settle, with any claims or Actions under this Agreement on behalf of such Company StockholderAgreement.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders Unitholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Class A Common Stock Units issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this AgreementAgreement upon written notice of such substitution to the Purchaser.
(fd) All decisions, decisions and actions and instructions by the Representative Representative, including the defense or settlement of any claims for Losses for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8.02 hereof, shall be conclusive and binding upon all of the Company StockholdersUnitholders, and no Company Stockholder Unitholder shall have the right to object, dissent, protest or otherwise contest the same. No Party .
(e) The Purchaser and the Merger Sub shall be able to rely conclusively (without further evidence of any kind whatsoever, and without any duty of further inquiry) on the instructions and decisions of the Representative as to the determination and payment of the Closing Residual Cash Consideration and the Final Residual Cash Consideration, the settlement of any claims for Losses for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8.02 or Company Stockholder Section 10.01(l) hereof and any other actions taken or not taken by the Representative hereunder, and none of the parties hereto, the Unitholders or any other Person shall have any cause of action against the Purchaser or the Merger Sub for or in respect of (i) any action taken or not taken, decision made or instruction given by the Representative or (ii) any action taken or not taken by the Purchaser or the Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) All actions, decisions and instructions of the Representative shall be conclusive and binding upon all of the Unitholders, and no party hereunder or Unitholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud fraud or willful misconduct by the Representative. Any action, decision or instruction hereunder or in connection herewith that is binding on the parties to this Agreement (including the determination, if any, of the Dispute Resolution Auditor) shall be binding upon all of the Unitholders.
(g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(h) The provisions of this Section 9.17 12.18 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder Unitholder may have against the Representative in connection with the transactions contemplated by this Agreement.
(ih) The provisions of this Section 9.17 12.18 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each Company StockholderUnitholder, and any references in this Agreement to a Company Stockholder Unitholder shall mean and include the successors to the rights of the Company Stockholders Unitholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(ji) All reasonable fees and expenses incurred by the Representative in connection with this Agreement and/or in controlling any Tax contests with respect to the Company or any Subsidiary shall be paid by the Company Stockholders Unitholders on a pro rata basis based on the their respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company StockholderCommon Percentages; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such reasonable fees and expenses in excess of the Representative Holdback Amount.
(k) The Company Stockholders shall severally and not jointly (in accordance with their Per Share Portions), indemnify and hold harmless the 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 the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. The Representative Losses shall be satisfied first from the Representative Holdback Amount and then, to the extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in accordance with their Per Share Portions).
Appears in 1 contract
Samples: Merger Agreement (Campbell Soup Co)
