Appointment of the Stockholder Representative. (a) By executing this Agreement, the Company (and, upon execution of a Stockholder Transmittal Letter, each Company Equityholders) shall be deemed to have constituted and appointed, effective from and after the date of this Agreement, Shareholder Representative Services LLC as the agent and attorney-in-fact for and on behalf of each Stockholder to act as the Stockholder Representative under this Agreement. (b) The Stockholder Representative shall take any and all actions required, permitted, necessary or appropriate under this Agreement for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including: (i) taking any and all actions (including, without limitation, executing and delivering any documents and incurring any costs and expenses on behalf of the Company Equityholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby; (ii) giving and receiving notices and communications under this Agreement and the Ancillary Agreements; (iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or in respect of this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VII; (iv) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby; and (v) making any other decision or election or exercising such rights, power and authority as are incidental to the foregoing. (c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 as if they were a party to this Agreement. (d) Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided that no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacity. (e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith shall be absolutely and irrevocably binding upon the Company Equityholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholders, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of the Stockholder Representative. (f) The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative's gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Equityholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "Representative Losses") arising out of or in connection with the Stockholder Representative's execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. (g) Upon the Closing, the Company will wire $250,000 (the "Expense Fund") to the Stockholder Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative's responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Payments Administrator for further distribution to the Company Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders at the time of Closing.
Appears in 2 contracts
Appointment of the Stockholder Representative. (a) By executing this Agreement, the Company (and, upon execution of a Stockholder Stock Letter of Transmittal Letteror participating in the Mergers and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Company EquityholdersEquityholder) shall be deemed to have constituted and appointed, effective from and after the date of this AgreementClosing Date, Shareholder the Stockholder Representative Services LLC as the representative, agent and attorney-in-fact for and on behalf of each Stockholder to act as the Stockholder Representative under for all purposes in connection with this AgreementAgreement and any agreements ancillary hereto.
(b) The Stockholder Representative shall take any and all actions required, permitted, necessary or appropriate under this Agreement or any agreement ancillary hereto for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including:
(i) taking any and all actions (including, without limitation, including executing and delivering any documents and incurring any costs and expenses expenses, in each case, on behalf of the Company Equityholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ii) giving and receiving notices and communications under this Agreement and the Ancillary Agreements;
(iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or in respect of this Agreement or the Ancillary Agreements, including, without limitation, including claims and disputes pursuant to this Article VII;
(iv) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby; and
(v) making any other decision or election or exercising such rights, power and authority as are incidental to the foregoing.
(c) Upon execution of a Stockholder Transmittal LetterStock Letter of Transmittal, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, documents and (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 as if they were a party to this Agreement.
(d) The Stockholder Representative my resign at any time. Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided that no change in the Stockholder Representative appointment of a successor shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacitycapacity except as set forth in that certain Engagement Letter by and among the Stockholder Representative, the Company and certain Company Equityholders dated on or about the Closing Date.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith shall be absolutely and irrevocably binding upon the Company Equityholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholders, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of the Stockholder Representative.
(f) The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's ’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative's ’s gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Equityholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "“Representative Losses"”) arising out of or in connection with the Stockholder Representative's ’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Indemnity Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Participating Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(g) Upon the Closing, the Company Parent will wire $250,000 (the "“Expense Fund"”) to the Stockholder Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Participating Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative's ’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Payments Administrator Paying Agent for further distribution to the Company Participating Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders Participating Equityholders at the time of Closing.
Appears in 1 contract
Samples: Merger Agreement (Take Two Interactive Software Inc)
Appointment of the Stockholder Representative. (a) By executing this Agreement, a Stock Letter of Transmittal or the Company (andWritten Consent or, upon execution in the case of a Stockholder Transmittal LetterCompany Optionholder, participating in the Mergers and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Company Equityholders) Equityholder shall be deemed to have irrevocably constituted and appointed, effective from and after the date of this Agreementhereof, Shareholder the Stockholder Representative Services LLC as the agent representative, agent, proxy and attorney-in-fact for and on behalf of each Stockholder to act as the Stockholder Representative for all purposes in connection with this Agreement and any agreements ancillary hereto with full power and authority to take all actions under this Agreement and any other agreement entered into or document delivered in connection with the transactions contemplated by this Agreement.
(b) The Stockholder Representative shall have the authority to take any and all actions it believes are required, permitted, necessary necessary, desirable or appropriate under this Agreement or any agreement ancillary hereto, including giving and receiving any notice or instruction permitted or required under this Agreement, interpreting all of the terms and provisions of this Agreement, authorizing payments to be made with respect hereto or thereto, conducting negotiations with Parent, Merger Sub or Merger Sub II or any Surviving Company and their respective agents regarding such claims, dealing with Parent and any Surviving Company under this Agreement, taking any other actions specified in or contemplated by this Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Company Equityholders authorize the Stockholder Representative to act for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including:
(i) taking any and all actions as the Stockholder Representative may, in its sole discretion, deem necessary or advisable in respect of: (includingA) waiving any inaccuracies in the representations or warranties of Parent, without limitationMerger Sub I or Merger Sub II contained in this Agreement or in any document delivered by Parent, Merger Sub I or Merger Sub II in connection with this Agreement or the transactions contemplated hereby; (B) taking such other action as the Stockholder Representative is authorized to take under this Agreement (including executing and delivering any documents and incurring any costs and expenses expenses, in each case, on behalf of the Company Equityholders); (C) receiving all documents or certificates and making all determinations required under this Agreement; (D) making any and all determinations and taking all such actions which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements Transaction Documents and the transactions contemplated hereby and thereby;thereby or to otherwise carry out the responsibilities of the Stockholder Representative contemplated by this Agreement or any Transaction Documents, including any waiver of any obligation of Parent, Merger Sub I, Merger Sub II or any Surviving Company; 107
(ii) giving and receiving notices notices, documents and communications given or to be given to or by the Company Equityholders under or in connection with this Agreement and/or any of the Transaction Documents and the Ancillary Agreementsaccepting service of legal process in connection with any Legal Proceeding arising in connection with this Agreement;
(iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent Parent, Merger Sub, Merger Sub II, the Surviving Company (but only from and after the Closing) and any other Parent Indemnitees arising out of or in respect of connection with this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VIITransaction Documents;
(iv) retaining legal counsel, accountants, consultants and other experts and incurring other expenses in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements Transaction Documents and the transactions contemplated hereby and therebythereby as the Stockholder Representative may in its sole discretion deem necessary or advisable; and
(v) making any other decision or election or exercising such rights, power and authority as are incidental to the foregoing.
(c) Upon execution of a Stockholder Stock Letter of Transmittal Letteror the Company Written Consent, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, documents and (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 this Section 10.10 as if they were a party to this Agreement.
(d) The Stockholder Representative may resign at any time. Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided provided, that no change in the Stockholder Representative appointment of a successor shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacity.
(e) In the performance of its duties hereunder, the Stockholder Representative shall be entitled to (i) rely upon any document or instrument reasonably believed by it to be genuine and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith shall be absolutely and irrevocably binding upon the Company Equityholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholders, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of the Stockholder Representative.. 108
(f) The Stockholder Representative (including in respect of its holding and disbursement of the Representative Expense Amount) will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's ’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative's gross negligence ’s fraud or willful misconductmisconduct in connection with this Agreement; provided, that in no event shall the Stockholder Representative be liable hereunder or in connection herewith for any indirect, punitive or special damages. The Stockholder Representative may, in all questions arising under this Agreement, rely on the advice of counsel and other experts and advisers and shall not be liable for any action or omission pursuant to the advice of counselcounsel or any other experts or advisers. The Company Equityholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "“Representative Losses"”) arising out of or in connection with the Stockholder Representative's ’s execution and performance of this Agreement and any agreements ancillary heretohereto and for service as the Stockholder Representative, in each case as such Representative Loss is suffered or incurredincurred by the Stockholder Representative or any of its Affiliates and any of their respective managers, directors, officers, employees, agents, members, partners, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case, relating to the Stockholder Representative’s conduct as Stockholder Representative; provided, that in the event that any such Representative Loss is finally adjudicated by a court of competent jurisdiction to have been directly caused by the gross negligence fraud or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence fraud or willful misconduct. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(g) The Stockholder Representative will be entitled to full reimbursement for all expenses, disbursements and advances (including service fees and disbursements of its counsel, experts, advisors, consultants, agents or other representatives, including Affiliates of the Stockholder Representative) incurred by or on behalf of the Stockholder Representative in such capacity from the Representative Expense Amount in accordance with the terms of this Agreement. If not paid directly to the Stockholder Representative by the Company Equityholders, any such expenses, disbursements and advances or other Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Representative Expense Fund, and (ii) Amount and/or the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders Company Equityholders or otherwise. Notwithstanding Funds held as the Representative Expense Amount need not be invested and shall accrue no interest. In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, any restrictions the Stockholder Representative shall have the power and authority to set aside and retain additional funds paid to or limitations on liability received by it, or indemnification obligations direct payment of additional funds to be paid to the Company Equityholders (in the case of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the ClosingOptionholders, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(gthrough any Surviving Company) Upon the Closing, the Company will wire $250,000 (the "Expense Fund") to the Stockholder Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and at the agreements ancillary hereto. The Company Equityholders will not receive any interest Closing or earnings on the Expense Fund and irrevocably transfer and assign thereafter (including to establish such reserves as the Stockholder Representative any ownership right determines in good faith to be appropriate for such costs and expenses that they may otherwise have had in any such interest are not then known or earningsdeterminable). The Stockholder Representative will not be liable for any loss of principal of To the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors extent that the amount included in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative's responsibilitiesRepresentative Expense Amount exceeds such expenses, disbursements or advances, the Stockholder Representative will deliver any remaining balance of the Expense Fund will, at such time as it deems reasonable in its sole discretion, pay such excess to the Payments Administrator Company Equityholders in accordance with their respective percentages contributed to the Representative Expense Amount set forth on the Closing Consideration Schedule; provided, that any of such amount allocable to Company Optionholders shall be paid to the Second Surviving Company for further distribution to the Company EquityholdersOptionholders in accordance with the Closing Consideration Schedule. For tax purposes, 109
(h) The appointment of the Expense Fund will be treated as having been received Stockholder Representative hereunder is duly made and voluntarily set aside irrevocable and any action taken by the Shareholders at Stockholder Representative pursuant to the time authority granted in this Section 10.10 shall be effective and binding as the action of Closingthe Stockholder Representative under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (AdaptHealth Corp.)
Appointment of the Stockholder Representative. (a) By executing this Agreement, the Company (and, upon execution of a Stockholder Transmittal Letter, each Company EquityholdersStockholder) shall be deemed to have constituted and appointed, effective from and after the date of this Agreement, Shareholder Representative Services LLC Frontier Fund IV, L.P., as the agent and attorney-in-fact fact, with full power and authority to act, including power of substitution, for and on behalf of each Stockholder to act as the Stockholder Representative under this Agreement.
(b) The Stockholder Representative shall take any and all actions required, permitted, necessary or appropriate under this Agreement for and on behalf of the Company Equityholders Stockholders as if the Company Equityholders Stockholders were acting on their own behalf, including:
(i) taking any and all actions (including, without limitation, executing and delivering any documents and incurring any costs and expenses on behalf of the Company EquityholdersStockholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ii) giving and receiving notices and communications under this Agreement and the Ancillary Agreements;
(iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or in respect of this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VIIVIII;
(iv) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby; and
(v) making any other decision or election or exercising such rights, power and authority as are incidental to the foregoing.
(c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder Stockholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder Stockholder shall be bound by such documents as fully as if such Company Equityholder Stockholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 as if they were a party to this Agreement.
(d) Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders Stockholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided that provided, that, no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company EquityholdersStockholders. The Stockholder Representative shall not receive compensation for service in such capacity.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith shall be absolutely and irrevocably binding upon the Company Equityholders Stockholders as if such Company Equityholder Stockholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company EquityholdersStockholders, and no Company Equityholder Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of the Stockholder Representative.
(f) The This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any Stockholder Representative will incur no liability or by operation of any kind with respect to any action or omission by law. Neither the Stockholder Representative in connection nor any agent employed by it shall incur any liability to any Stockholder by virtue of the failure or refusal of the Stockholder Representative for any reason to consummate the transactions related to this Agreement or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Stockholders, jointly and severally, agree to indemnify the Stockholder Representative's services pursuant to this Agreement , its successors, assigns, agents, attorneys and any agreements ancillary hereto, except in affiliates (the event of liability directly resulting from the Stockholder Representative's gross negligence or willful misconduct. The “Stockholder Representative shall not be liable for any action or omission pursuant Parties”) and to the advice of counsel. The Company Equityholders will indemnify, defend and hold harmless the Stockholder Representative from and Parties harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs liabilities or expenses incurred without bad faith on the part of the Stockholder Representative and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "Representative Losses") arising out of or in connection with the Stockholder Representative's execution and performance of this Agreement and any agreements ancillary hereto, in each case its duties as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, including the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered reasonable costs and expenses incurred by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts defending against any claim or liability in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such losses as they are suffered connection herewith or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Ancillary Agreement.
(g) Upon the Closing, the Company will wire $250,000 (the "Expense Fund") to the Stockholder Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative's responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Payments Administrator for further distribution to the Company Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders at the time of Closing.
Appears in 1 contract
Samples: Merger Agreement (Teladoc, Inc.)
Appointment of the Stockholder Representative. (a) By executing this Agreement, the Company (and, upon execution of a Stockholder Transmittal Letter, each Company Equityholders) shall be deemed to have constituted approval and appointed, effective from and after the date adoption of this Agreement, Shareholder Representative Services LLC each Stockholder hereby irrevocably appoints Xxxxxx X. Xxxxxx, as the agent its, his or her true and lawful attorney-in-fact for and agent (the “Stockholder Representative”), with full power of substitution or resubstitution by written designation of and notice to Parent of a successor shareholder representative, to act on behalf of each such Stockholder and the Stockholders collectively in any disputes involving the Transaction Documents (other than any disputes involving Claims for which such Stockholder is solely liable), to act do or refrain from doing all such further acts and things, and to execute all such documents as the Stockholder Representative shall deem necessary or appropriate in connection with the Transactions, including the power:
(a) to act for such Stockholder with regard to Claims (other than Claims for which such Stockholder is solely liable), including the power to compromise or settle any Claim on behalf of such Stockholder and to transact matters of litigation, and to act for such Stockholder under this the Escrow Agreement.;
(b) The to execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Stockholder Representative shall take any and all actions required, permitted, deems necessary or appropriate under this Agreement for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including:
(i) taking any and all actions (including, without limitation, executing and delivering any documents and incurring any costs and expenses on behalf of the Company Equityholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation consummation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and therebyTransactions;
(iic) giving to receive funds, make payments of funds, and receiving notices and communications under this Agreement and the Ancillary Agreementsgive receipts for funds;
(iiid) negotiating, defending, settling, compromising to receive funds for the payment of expenses of such Stockholder and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or apply such funds in respect of this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VII;
(iv) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and therebypayment for such expenses; and
(ve) making to do or refrain from doing any other decision further act or election or exercising deed on behalf of such rights, power and authority as are incidental to the foregoing.
(c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate deems necessary or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder appropriate in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 as if they were a party to this Agreement.
(d) Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior its sole discretion relating to the Closing shall become the Stockholder Representative; provided that no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacity.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith shall be absolutely and irrevocably binding upon the Company Equityholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholders, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of the Stockholder Representative.
(f) The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative's gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Equityholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "Representative Losses") arising out of or in connection with the Stockholder Representative's execution and performance subject matter of this Agreement as fully and any agreements ancillary hereto, in each case completely as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreementcould do if personally present.
(g) Upon the Closing, the Company will wire $250,000 (the "Expense Fund") to the Stockholder Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative's responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Payments Administrator for further distribution to the Company Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders at the time of Closing.
Appears in 1 contract
Samples: Merger Agreement (Enernoc Inc)
Appointment of the Stockholder Representative. (a) By executing this Agreement, the Company (and, upon execution of a Each Stockholder Transmittal Letter, each Company Equityholders) shall be deemed to have constituted hereby irrevocably appoints and appointed, effective from and after the date of this Agreement, Shareholder Representative Services LLC authorizes Xxxxx Xxxxx Xxxxx as the “Stockholder Representative” and in such capacity as its agent and attorney-in-fact to take such action as agent and attorney-in-fact on its or his behalf and to exercise such powers under this Agreement and any Transaction Documents which require any form of any Stockholder approval or consent, together with all such powers as are reasonably incidental thereto. The Stockholder Representative may perform its duties as such through sub-agents and attorneys-in-fact and shall have no liability for and any acts or omissions of any such sub-agent or attorney if selected by it with reasonable care. Buyer shall be entitled to deal exclusively with the Stockholder Representative on behalf of each any and all Stockholders with respect to all matters relating to this Agreement and the Transaction Documents, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Stockholder to act as by the Stockholder Representative under this AgreementRepresentative, and on any other action taken or purported to be taken on behalf of any Stockholder by the Stockholder Representative, as fully binding upon such Stockholder.
(b) The Without limiting the generality of the foregoing Section 8.15(a), the Stockholder Representative shall Representative, acting alone without the consent of any other Stockholder, is hereby authorized to (i) take any and all actions requiredunder ARTICLE I, permitted, necessary or appropriate under this Agreement for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including:
(i) taking any and all actions (including, without limitation, executing and delivering any documents and incurring any costs and expenses on behalf of the Company Equityholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ii) giving and receiving notices and communications under this Agreement and effect payments to the Ancillary Agreements;
Stockholders hereunder, (iii) negotiatingreceive or give notices hereunder, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or in respect of this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VII;
(iv) retaining legal counselreceive or make payment hereunder, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby; and
(v) making any other decision execute waivers or election amendments hereof, and (vi) execute and deliver documents, releases or exercising such rights, power and authority as are incidental to the foregoingreceipts hereunder.
(c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder acknowledges and agrees (i) The Parties confirm their understanding that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5is a Stockholder, and 10.6 as if they were a party to this Agreement.
(d) Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided that no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacity.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith shall be absolutely and irrevocably binding upon the Company Equityholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholders, and no Company Equityholder it shall have the right to object, dissent, protest same rights and powers under this Agreement as any other Stockholder and may exercise or otherwise contest refrain from exercising the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of same as though it were not the Stockholder Representative.
(fd) The Stockholder Representative will incur no liability of any kind may consult with respect legal counsel, independent public accountants and other experts selected by it and shall not be liable to any Stockholder for any action taken or omission omitted to be taken by the Stockholder Representative it in connection good faith in accordance with the Stockholder Representative's services pursuant to this Agreement and any agreements ancillary heretoadvice of such counsel, except in the event of liability directly resulting from the Stockholder Representative's gross negligence accountants or willful misconduct. experts.
(e) The Stockholder Representative shall not be liable for (i) any action or omission pursuant consented to or requested by a majority in interest of the other Stockholders (based on respective Pro Rata Share), or (ii) any action or omission otherwise taken by it hereunder except (in the case of this clause (ii) only) in the case of willful misconduct by the Stockholder Representative. The Stockholder Representative shall not be deemed to be a trustee or other fiduciary on behalf of any Stockholder or any other Person, nor shall the Stockholder Representative have any liability in the nature of a trustee or other fiduciary. The Stockholder Representative does not make any representation or warranty as to, nor shall it be responsible for or have any duty to ascertain, inquire into or verify (A) any statement, warranty or representation made in or in connection with this Agreement or the Transaction Documents, (B) the performance or observance of any of the covenants or agreements of the Stockholders under this Agreement or any of the other Transaction Documents, or (C) the genuineness, legality, validity, binding effect, enforceability, value, sufficiency, effectiveness or genuineness of this Agreement, the Transaction Documents or any other instrument or writing furnished in connection herewith or therewith. The Stockholder Representative shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, electronic mail or similar writing) believed by it to be genuine and to be signed or sent by the proper party or parties.
(f) Each Stockholder shall, ratably in accordance with his or its Pro Rata Share pay or reimburse the Stockholder Representative, upon presentation of an invoice, for all costs and expenses of the Stockholder Representative (including, without limitation, fees and expenses of counsel to the advice Stockholder Representative) in connection with (i) the enforcement of counsel. The Company Equityholders will this Agreement and any of the Transaction Documents or the protection or preservation of the rights of each Stockholder or the Stockholder Representative against Buyer, or any of their respective assets, and (ii) any amendment, modification or waiver of any of the terms of this Agreement or any Transaction Documents (whether or not any such amendment, modification or waiver is signed or becomes effective).
(g) Each Stockholder shall, ratably in accordance with such Stockholder’s Pro Rata Share, indemnify, defend and hold harmless the Stockholder Representative from and the Stockholder Representative’s Affiliates and their respective partners, directors, officers, managers, members, agents, attorneys, employees and shareholders of each of the foregoing against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "Representative Losses") arising out of claim that such indemnitees may suffer or incur in connection with its capacity as the Stockholder Representative's execution , or any action taken or omitted by such indemnitees hereunder or under the Transaction Documents (except such resulting from such indemnitees’ willful misconduct).
(h) Each Stockholder acknowledges that it has, independently and performance of without reliance upon the Stockholder Representative or any other Stockholder, and based on such documents and information as it has deemed appropriate, made its own legal analysis and decision to enter into this Agreement Agreement. Each Stockholder also acknowledges that it or he will, independently and without reliance upon the Stockholder Representative or any agreements ancillary heretoother Stockholder, and based on such documents and information as it or he shall deem appropriate at the time, continue to make its or his own decisions in each case as such taking or not taking any action under this Agreement.
(i) The Stockholder Representative Loss is suffered or incurred; provided, that in may resign at any time by giving notice thereof to the event that Stockholders. Upon any such resignation, the Stockholders shall appoint a successor Stockholder Representative. If no successor Stockholder Representative Loss is finally adjudicated to shall have been directly caused appointed by the gross negligence or willful misconduct Stockholders, and shall have accepted such appointment, within thirty (30) days after the retiring Stockholder Representative gives notice of resignation, then the retiring Stockholder Representative, may, on behalf of the Stockholders appoint a successor Stockholder Representative, which shall be any Stockholder. Upon the acceptance of its appointment as the Stockholder Representative hereunder by a successor Stockholder Representative, such successor Stockholder Representative shall thereupon succeed to and become vested with all the rights and duties of the retiring Stockholder Representative, and the retiring Stockholder Representative shall be discharged from its duties and obligations hereunder. After the retiring Stockholder Representative’s resignation hereunder as the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount provisions of such indemnified Representative Loss this Agreement shall inure to the extent attributable its benefit as to such gross negligence any actions taken or willful misconduct. If not paid directly omitted to be taken by it while it was the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Equityholders from their obligation to promptly pay such losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this AgreementRepresentative.
(gj) Upon The Stockholder Representative shall not be required by the ClosingStockholders to institute or be permitted to defend any action involving any matters referred to herein or which affects it or its duties or liabilities hereunder, the Company will wire $250,000 (the "Expense Fund") unless or until requested to do so by any party to this Agreement and then only upon receiving full indemnity, in character satisfactory to the Stockholder Representative, which will be used for against any and all claims, liabilities and expenses, including reasonable attorneys’ fees in relation thereto.
(k) This Section 8.15 sets forth all of the purposes duties of paying directly, or reimbursing the Stockholder Representative for, to the Stockholders with respect to any third party expenses pursuant to and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement and or any of the agreements ancillary heretoTransaction Documents against the Stockholder Representative. The Company Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to obligations of the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of hereunder and under the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes Transaction Documents are only those expressly set forth herein and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative's responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Payments Administrator for further distribution to the Company Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders at the time of Closingtherein.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Superconductor Corp /De/)
Appointment of the Stockholder Representative. (ai) By executing this Agreement, the Company (and, upon execution of the Written Consent or a Stockholder Transmittal Letter, each Company EquityholdersEquityholder) shall be deemed to have constituted and appointed, effective from and after the date of this Agreement, Shareholder Representative Services LLC as the agent and attorney-in-fact for and on behalf of each Stockholder Company Equityholder to act as the Stockholder Representative under this Agreement in accordance with the terms of this Section 7.2.(g). In the event of the resignation, removal, dissolution, liquidation, bankruptcy, death or incapacity of the Stockholder Representative, the Company Equityholders shall promptly appoint a successor Stockholder Representative (and in any event within ten Business Days of such vacancy), and such appointment shall become effective as to any such successor when a copy of such instrument shall have been delivered to Parent. The Stockholder Representative may resign at any time. The Company Equityholders holding a majority of the Pro Rata Portion of all of the Company Equityholders shall have the right to remove a Stockholder Representative and to appoint a successor Stockholder Representative. The Stockholder Representative shall have full power and authority to represent all of the Company Equityholders and their successors with respect to all matters arising under this Agreement.
(b) , and all actions taken by the Stockholder Representative hereunder shall be binding upon all such Company Equityholders as if expressly confirmed and ratified in writing by each of them, and no Company Equityholders shall have the right to object, dissent, protest or otherwise contest the same. The Stockholder Representative shall take any and all actions required, permitted, that it believes are necessary or appropriate under this Agreement and the Escrow Agreement for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including:
(iincluding giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Stockholder Representative or any Company Equityholders, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto, defending all Claims against the Company Equityholders pursuant to Section 7.2(a) of this Agreement, consenting to, compromising or settling all indemnification claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent under this Agreement and the Escrow Agreement with respect to all matters arising under this Agreement or the Escrow Agreement, taking any and all other actions specified in or contemplated by this Agreement and the Escrow Agreement and engaging counsel, accountants or other agents in connection with the foregoing matters. Without limiting the generality of the foregoing, the Stockholder Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of all of the Company Equityholders.
(ii) The Stockholder Representative has been duly authorized by the Company Equityholders for or on behalf of each Company Equityholder, following the Effective Time, to:
(A) take all actions required by, and exercise all rights granted to, the Stockholder Representative in this Agreement and the Escrow Agreement;
(B) receive all notices or other documents given or to be given to the Company Equityholders by Parent or Merger Sub pursuant to this Agreement or the Escrow Agreement;
(C) receive and accept service of legal process in connection with any claim or other proceeding against the Company Equityholders arising under this Agreement or the Escrow Agreement;
(D) undertake, compromise, defend and settle any such suit or proceeding on behalf of the Company Equityholders arising under this Agreement (including, without limitation, executing under Article VII hereof) or the Escrow Agreement;
(E) execute and delivering any deliver all agreements, certificates and documents and incurring any costs and expenses on behalf of the Company Equityholders) and making any and all determinations which may be required or permitted deemed appropriate by the Stockholder Representative in connection with the post-Closing implementation any of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and therebyby this Agreement, including the Escrow Agreement;
(iiF) giving engage special counsel, accountants and receiving notices other advisors and communications under this Agreement and incur such other expenses in connection with any of the Ancillary Agreements;
(iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or in respect of transactions contemplated by this Agreement or the Ancillary AgreementsEscrow Agreement;
(G) work with Parent to resolve any issues relating to the determination and final accounting of Working Capital and the Final Adjustment Amount; and
(H) take such other action as the Stockholder Representative may deem appropriate, including, without limitation, claims and disputes pursuant to this Article VII;:
(ivI) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth agreeing to any modification or necessary amendment of or waiver with respect to this Agreement or the Ancillary Agreements Escrow Agreement and the transactions contemplated hereby executing and therebydelivering an agreement of such modification or amendment or waiver;
(II) agreeing to any termination of this Agreement pursuant to Article VIII hereof; and
(vIII) making any all such other decision or election or exercising such rights, power and authority matters as are incidental to the foregoing.
(c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative may deem necessary or appropriate to carry out the intents and purposes of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 as if they were a party to this Agreement.
(diii) Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided that no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive no compensation for service in such capacity.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by services as the Stockholder Representative in connection herewith shall other than pursuant to the terms of that of that certain engagement letter to be absolutely entered into by and irrevocably binding upon the Company Equityholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholders, and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of among the Stockholder Representative.
(f) , the Company and certain of the Company Equityholders. The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's ’s services pursuant to this Agreement and any agreements ancillary heretothe Escrow Agreement, except in the event of liability directly resulting from the Stockholder Representative's ’s gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Equityholders will indemnifyindemnify (based on each such Company Equityholder’s Pro Rata Portion), defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "“Representative Losses"”) arising out of or in connection with the Stockholder Representative's ’s execution and performance of this Agreement and any agreements ancillary heretothe Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, Fund and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of fundsExpense Fund and the Escrow Account, this does not relieve the Company Equityholders from their obligation to promptly pay such losses Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders Company Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the The Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to acknowledge and agree that the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. None of Parent, the Company or Merger Sub shall have any obligation to reimburse the Stockholder Representative for any such expenses.
(giv) Without limiting the generality of this Section 7.2.(g), following the Effective Time, the Company Equityholders agree that the Stockholder Representative shall act as representative of the Company Equityholders for all purposes under this Article VII. Parent agrees that any claim for indemnification made by any of the Parent Indemnitees pursuant to this Agreement shall be made exclusively through the Stockholder Representative acting on behalf of the Company Equityholders (and the Company Equityholders agree that any such claim against the Company Equityholders by a Parent Indemnitee may be made by providing notice of such claim to the Stockholder Representative).
(v) The Stockholder Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Equityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Stockholder Representative and in general to do all things and to perform all acts. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Company Equityholder, by operation of law (whether by such Company Equityholder’s death, disability protective supervision) or any other event. Without limitation to the foregoing, this power of attorney is to ensure the performance of a special obligation, and, accordingly, each Company Equityholder hereby renounces its, his or her right to renounce this power of attorney unilaterally. Each Company Equityholder hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Stockholder Representative taken in good faith under this Agreement or the Escrow Agreement. Notwithstanding the power of attorney granted in this Section 7.2.(g), no agreement, instrument, acknowledgement or other act or document shall be ineffective by reason only of the Company Equityholders having signed or given such directly instead of the Stockholder Representative.
(vi) Any action taken by the Stockholder Representative pursuant to the authority granted in this Section 7.2.(g) shall be effective and absolutely binding on each Company Equityholder notwithstanding any contrary action of, or direction from, any Company Equityholder.
(vii) Upon the Closing, the Company will wire $250,000 (the "Expense Fund") to the Stockholder RepresentativeRepresentative US$25,000(the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary heretoEscrow Agreement. The Company Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As Contemporaneous with or as soon as practicable following the completion of the Stockholder Representative's responsibilities’s responsibilities hereunder, the Stockholder Representative will deliver any remaining shall disburse the balance of the Expense Fund to the Payments Administrator for further distribution to the Company Equityholders based on such Company Equityholders’ Pro Rata Portion of such balance. For tax purposes, the Expense Fund will shall be treated as having been received and voluntarily set aside by the Shareholders Company Equityholders at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. If any tax reporting is required with respect to the ultimate distribution of any balance of the Expense Fund, then the Stockholder Representative will provide to Parent or its designated agent, upon request, information regarding the amounts distributed to each Company Equityholders, to be used by Parent or its agent in completing any required tax reporting. Any portion of the Expense Fund that remains undeliverable or unclaimed after six months of the initial delivery attempt shall promptly be paid to Parent and handled in the same manner as other unclaimed funds as provided in the Escrow Agreement.
Appears in 1 contract
Appointment of the Stockholder Representative. (ai) By executing this Agreement, the Company (and, upon approval of this Agreement, execution of the Written Consent or a Stockholder Transmittal Letter, each Company EquityholdersStockholder) shall be deemed to have constituted and appointed, effective from and after the date of this Agreement, Shareholder Representative Services LLC Xxxxxx X. Xxxxxxx as the agent and attorney-in-fact for and on behalf of each Company Stockholder to act as the Stockholder Representative under this Agreement.
(b) The Stockholder Representative shall take any and all actions required, permitted, necessary or appropriate under Agreement in accordance with the terms of this Agreement for and on behalf Section 7.2.(g). In the event of the Company Equityholders as if the Company Equityholders were acting on their own behalfresignation, including:
(i) taking any and all actions (includingremoval, without limitationdissolution, executing and delivering any documents and incurring any costs and expenses on behalf liquidation, bankruptcy, death or incapacity of the Company Equityholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ii) giving and receiving notices and communications under this Agreement and the Ancillary Agreements;
(iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of or in respect of this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VII;
(iv) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby; and
(v) making any other decision or election or exercising such rights, power and authority as are incidental to the foregoing.
(c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such the Company Equityholder Stockholders shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder in the care of the promptly appoint a successor Stockholder Representative (and in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5any event within ten Business Days of such vacancy), and 10.6 such appointment shall become effective as if they were to any such successor when a party copy of such instrument shall have been delivered to this Agreement.
(d) Upon the resignation, death, disability or incapacity of the initial Parent. The Stockholder Representative, then such Person as is appointed by the Representative may resign at any time. The Company Equityholders who held Stockholders holding a majority of the voting power Pro Rata Portion of all of the Company Capital Stock immediately prior Stockholders shall have the right to the Closing shall become the remove a Stockholder Representative and to appoint a successor Stockholder Representative; provided that no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacity.
(e) Any have full power and authority to represent all of the Company Stockholders and their successors with respect to all matters arising under this Agreement, and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Stockholder Representative in connection herewith hereunder shall be absolutely and irrevocably binding upon the all such Company Equityholders Stockholders as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination expressly confirmed and ratified in its individual capacity, and Parent may rely upon such action, exercise writing by each of right, power, or authority or such decision or determination of the Stockholder Representative as the action, exercise, right, power, or authority, or decision or determination of such Company Equityholdersthem, and no Company Equityholder Stockholders shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from The Stockholder Representative shall take any liability to and all actions that it believes are necessary or appropriate under this Agreement and the Escrow Agreement for and on behalf of the Company Stockholders as if the Company Stockholders were acting on their own behalf, including giving and receiving any Person for any acts done notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Stockholder Representative or any Company Stockholders, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto, defending all Claims against the Company Stockholders pursuant to Section 7.2(a) of this Agreement, consenting to, compromising or settling all indemnification claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent under this Agreement and the Escrow Agreement with respect to all matters arising under this Agreement or the Escrow Agreement, taking any acts done and all other actions specified in or contemplated by this Agreement and the Escrow Agreement and engaging counsel, accountants or other agents in connection with the foregoing matters. Without limiting the generality of the foregoing, the Stockholder Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of all of the Company Stockholders.
(ii) The Stockholder Representative has been duly authorized by the Company Stockholders for or on behalf of each Company Stockholder, following the Effective Time, to:
(A) take all actions required by, and exercise all rights granted to, the Stockholder Representative in this Agreement and the Escrow Agreement;
(B) receive all notices or other documents given or to be given to the Company Stockholders by Parent or Merger Sub pursuant to this Agreement or the Escrow Agreement;
(C) receive and accept service of legal process in accordance connection with any decisionclaim or other proceeding against the Company Stockholders arising under this Agreement or the Escrow Agreement;
(D) undertake, actcompromise, consent defend and settle any such suit or instruction proceeding on behalf of the Company Stockholders arising under this Agreement (including, without limitation, under Article VII hereof) or the Escrow Agreement;
(E) execute and deliver all agreements, certificates and documents required or deemed appropriate by the Stockholder Representative in connection with any of the transactions contemplated by this Agreement, including the Escrow Agreement;
(F) engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated by this Agreement or the Escrow Agreement; and
(G) take such other action as the Stockholder Representative may deem appropriate, including, without limitation:
(H) agreeing to any modification or amendment of or waiver with respect to this Agreement or the Escrow Agreement and executing and delivering an agreement of such modification or amendment or waiver;
(I) agreeing to any termination of this Agreement pursuant to Article VIII hereof; and
(J) all such other matters as the Stockholder Representative may deem necessary or appropriate to carry out the intents and purposes of this Agreement.
(iii) The Stockholder Representative shall receive no compensation for services as the Stockholder Representative other than pursuant to the terms of that of that certain engagement letter to be entered into by and among the Stockholder Representative.
(f) , the Company and certain of the Company Stockholders. The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's ’s services pursuant to this Agreement and any agreements ancillary heretothe Escrow Agreement, except in the event of liability directly resulting from the Stockholder Representative's ’s gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Equityholders Stockholders will indemnifyindemnify (based on each such Company Stockholder’s Pro Rata Portion), defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "“Representative Losses"”) arising out of or in connection with the Stockholder Representative's ’s execution and performance of this Agreement and any agreements ancillary heretothe Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company EquityholdersStockholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company EquityholdersStockholders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of fundsEscrow Account, this does not relieve the Company Equityholders Stockholders from their obligation to promptly pay such losses Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to The Company Stockholders acknowledge and agree that the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. None of Parent, the Company or Merger Sub shall have any obligation to reimburse the Stockholder Representative for any such expenses.
(giv) Upon Without limiting the Closinggenerality of this Section 7.2.(g), following the Effective Time, the Company will wire $250,000 Stockholders agree that the Stockholder Representative shall act as representative of the Company Stockholders for all purposes under this Article VII. Parent agrees that any claim for indemnification made by any of the Parent Indemnitees pursuant to this Agreement shall be made exclusively through the Stockholder Representative acting on behalf of the Company Stockholders (and the "Expense Fund") Company Stockholders agree that any such claim against the Company Stockholders by a Parent Indemnitee may be made by providing notice of such claim to the Stockholder Representative).
(v) The Stockholder Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Stockholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Stockholder Representative and in general to do all things and to perform all acts. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Company Stockholder, by operation of law (whether by such Company Stockholder’s death, disability protective supervision) or any other event. Without limitation to the foregoing, this power of attorney is to ensure the performance of a special obligation, and, accordingly, each Company Stockholder hereby renounces its, his or her right to renounce this power of attorney unilaterally. Each Company Stockholder hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Stockholder Representative taken in good faith under this Agreement or the Escrow Agreement. Notwithstanding the power of attorney granted in this Section 7.2.(g), no agreement, instrument, acknowledgement or other act or document shall be ineffective by reason only of the Company Stockholders having signed or given such directly instead of the Stockholder Representative.
(vi) Any action taken by the Stockholder Representative pursuant to the authority granted in this Section 7.2.(g) shall be effective and absolutely binding on each Company Stockholder notwithstanding any contrary action of, or direction from, any Company Stockholder.
(vii) Immediately prior to Closing, Parent will wire to the Stockholder Representative US$25,000 (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary heretoEscrow Agreement. The Company Equityholders will not receive any interest In the event Stockholder Representative’s expenses exceed, or earnings on are reasonably expected to exceed, the amount of the Expense Fund and irrevocably transfer and assign to the Fund, Parent will wire Stockholder Representative any ownership right that they may otherwise have had additional funds to be used for purposes of paying such expenses; provided that, Parent shall recover from the Escrow Account the amount of such additional expenses in any such interest or earningsthe manner set forth in Section 7.3. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate his personal funds, will not use these funds for its operating his personal expenses or any other corporate purposes and will not voluntarily make these funds available to its his creditors in the event of bankruptcy. As Contemporaneous with or as soon as practicable following the completion of the Stockholder Representative's responsibilities’s responsibilities hereunder, the Stockholder Representative will deliver any remaining shall disburse the balance of the Expense Fund to the Payments Administrator for further distribution to the Company Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders at the time of ClosingParent.
Appears in 1 contract
Appointment of the Stockholder Representative. (ai) By executing this Agreement, the Company (and, upon execution of the Written Consent or a Stockholder Transmittal Letter, each Company EquityholdersStockholder) shall be deemed to have constituted and appointed, effective from and after the date of this Agreement, Shareholder Representative Services LLC as the agent and attorney-in-fact for and on behalf of each Stockholder to act as the Stockholder Representative under this Agreement in accordance with the terms of this Section 7.2(f). In the event of the resignation, removal, dissolution, liquidation, bankruptcy, death or incapacity of the Stockholder Representative, the Company Equityholders shall promptly appoint a successor Stockholder Representative (and in any event within ten Business Days of such vacancy), and such appointment shall become effective as to any such successor when a copy of such instrument shall have been delivered to Parent. The Company Equityholders holding a majority of the Pro Rata Portions of all of the Company Equityholders shall have the right to remove a Stockholder Representative and to appoint a successor Stockholder Representative. The Stockholder Representative shall have full power and authority to represent all of the Company Equityholders and their successors with respect to all matters arising under this Agreement.
(b) , and all actions taken by the Stockholder Representative hereunder shall be binding upon all such Company Equityholders as if expressly confirmed and ratified in writing by each of them, and no Company Equityholders shall have the right to object, dissent, protest or otherwise contest the same. The Stockholder Representative shall take any and all actions required, permitted, that it believes are necessary or appropriate under this Agreement for and on behalf of the Company Equityholders as if the Company Equityholders were acting on their own behalf, including:
(iincluding giving and receiving any notice or instruction permitted or required under this Agreement by the Stockholder Representative or any Company Equityholders, interpreting all of the terms and provisions of this Agreement, authorizing payments to be made with respect hereto, defending all Claims against the Company Equityholders pursuant to Section 7.2(a) of this Agreement, consenting to, compromising or settling all indemnification claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent under this Agreement with respect to all matters arising under this Agreement, taking any and all other actions specified in or contemplated by this Agreement and engaging counsel, accountants or other agents in connection with the foregoing matters. Without limiting the generality of the foregoing, the Stockholder Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof or thereof on behalf of all of the Company Equityholders.
(ii) The Stockholder Representative has been duly authorized by the Company Equityholders for or on behalf of each Company Equityholder, following the Effective Time, to:
(A) take all actions required by, and exercise all rights granted to, the Stockholder Representative in this Agreement;
(B) receive all notices or other documents given or to be given to the Company Equityholders by Parent or Merger Sub pursuant to this Agreement;
(C) receive and accept service of legal process in connection with any claim or other proceeding against the Company Equityholders arising under this Agreement;
(D) undertake, compromise, defend and settle any such suit or proceeding on behalf of the Company Equityholders arising under this Agreement (including, without limitation, executing and delivering any documents and incurring any costs and expenses on behalf of the Company Equityholders) and making any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and therebyunder Article VII hereof);
(iiE) giving execute and receiving notices deliver all agreements, certificates and communications under this Agreement and the Ancillary Agreements;
(iii) negotiating, defending, settling, compromising and otherwise handling and resolving any and all claims and disputes with Parent and any other Parent Indemnitees arising out of documents required or in respect of this Agreement or the Ancillary Agreements, including, without limitation, claims and disputes pursuant to this Article VII;
(iv) retaining legal counsel, accountants, consultants and other experts in connection with all matters and things set forth or necessary with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby and thereby; and
(v) making any other decision or election or exercising such rights, power and authority as are incidental to the foregoing.
(c) Upon execution of a Stockholder Transmittal Letter, each Company Equityholder acknowledges and agrees (i) that upon any delivery by the Stockholder Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholder Representative, such Company Equityholder shall be bound by such documents as fully as if such Company Equityholder had executed and delivered such documents, (ii) that process may be served on such Company Equityholder in the care of the Stockholder Representative in accordance with Section 10.5 and (iii) to be bound by the provisions set forth in Sections 10.4, 10.5, and 10.6 as if they were a party to this Agreement.
(d) Upon the resignation, death, disability or incapacity of the initial Stockholder Representative, then such Person as is appointed by the Company Equityholders who held a majority of the voting power of the Company Capital Stock immediately prior to the Closing shall become the Stockholder Representative; provided that no change in the Stockholder Representative shall be effective prior to the delivery to Parent of written notice thereof from such Company Equityholders. The Stockholder Representative shall not receive compensation for service in such capacity.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made deemed appropriate by the Stockholder Representative in connection herewith with any of the transactions contemplated by this Agreement, including the Escrow Agreement;
(F) engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated by this Agreement;
(G) work with Parent to resolve any issues relating to the determination and final accounting of Working Capital and the Final Adjustment Amount.
(iii) The Stockholder Representative shall be absolutely and irrevocably binding upon the Company Equityholders receive no compensation for services as if such Company Equityholder had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholder Representative as other than pursuant to the action, exercise, right, power, or authority, or decision or determination terms of such Company Equityholders, that of that certain Engagement Letter to be entered into by and no Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent is hereby relieved from any liability to any Person for any acts done by the Stockholder Representative and any acts done by Parent in accordance with any decision, act, consent or instruction of among the Stockholder Representative.
(f) , the Company and certain of the Company Equityholders. The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative's ’s services pursuant to this Agreement and any agreements ancillary heretoAgreement, except in the event of liability directly resulting from the Stockholder Representative's ’s gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Equityholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "“Representative Losses"”) arising out of or in connection with the Stockholder Representative's ’s execution and performance of this Agreement and any agreements ancillary heretoAgreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated determined to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Equityholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Adjustment Escrow Account, Indemnity Escrow Account and Special Escrow Account at such time as remaining amounts would otherwise be distributable to the Company EquityholdersEquityholders in accordance with the terms of this Agreement; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of fundsExpense Fund and the Escrow Amount, this does not relieve the Company Equityholders from their obligation to promptly pay such losses Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. Parent shall be entitled to rely upon any instructions from the Stockholder Representative with respect to the distribution of any portion of the Escrow Amount to which the Stockholder Representative is entitled pursuant to this Section 7.2(f)(iii). None of Parent, the Company or Merger Sub shall have any obligation to reimburse the Stockholder Representative for any such expenses. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders Company Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the The Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to acknowledge and agree that the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(giv) Without limiting the generality of this Section 7.2(f), following the Effective Time, the Company Equityholders agree that the Stockholder Representative shall act as representative of the Company Equityholders for all purposes under this Article VII. Parent agrees that any claim for indemnification made by any of the Parent Indemnitees pursuant to this Agreement shall be made exclusively through the Stockholder Representative acting on behalf of the Company Equityholders (and the Company Equityholders agree that any such claim against the Company Equityholders by a Parent Indemnitee may be made by providing notice of such claim to the Stockholder Representative).
(v) Following the Effective Time, the Stockholder Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Equityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement in the absolute discretion of the Stockholder Representative and in general to do all things and to perform all acts. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Company Equityholder, by operation of law (whether by such Company Equityholder’s death, disability protective supervision) or any other event. Without limitation to the foregoing, this power of attorney is to ensure the performance of a special obligation, and, accordingly, each Company Equityholder hereby renounces its, his or her right to renounce this power of attorney unilaterally. Each Company Equityholder hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Stockholder Representative taken in good faith under this Agreement. Notwithstanding the power of attorney granted in this Section 7.2(f), no agreement, instrument, acknowledgement or other act or document shall be ineffective by reason only of the Company Equityholders having signed or given such directly instead of the Stockholder Representative.
(vi) Any action taken by the Stockholder Representative pursuant to the authority granted in this Section 7.2(f) shall be effective and absolutely binding on each Company Equityholder notwithstanding any contrary action of, or direction from, any Company Equityholder.
(vii) Upon the Closing, the Company Parent will wire to the Stockholder Representative US $250,000 (the "“Expense Fund") to the Stockholder RepresentativeFund Amount”), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and (the agreements ancillary hereto“Expense Fund”). The Company Equityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As Contemporaneous with or as soon as practicable following the completion of the Stockholder Representative's responsibilities’s responsibilities hereunder, the Stockholder Representative will deliver any remaining the balance of the Expense Fund to the Payments Administrator for further distribution Company Equityholders in accordance with such Company Equityholders’ respective Pro Rata Portions, except in the case of payments to employees or former employees of the Company Equityholdersfor which employment tax withholding is required, which such amounts shall be delivered to Parent or the Surviving Corporation and paid through Parent’s or Surviving Corporation’s payroll processing service or system. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders Company Equityholders at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. If any tax reporting is required with respect to the ultimate distribution of any balance of the Expense Fund, then the Stockholder Representative will provide to Parent or its designated agent, upon request, information regarding the amounts distributed to each Company Equityholder, to be used by Parent or its agent in completing any required tax reporting.
Appears in 1 contract
Samples: Merger Agreement (Demand Media Inc.)
